Zahida Bano v. Mohd. Rajab Parra

1. During investigation of FIR No. 100/ 2002 Police Station Bandipora a cow, a calf and one samawar and a Huqa came to be seized from the possession of the accused. Both the com­plainant and accused applied before the Judicial Magistrate Bandipora for release of the seized property. Ld. Magistrate has released the prop­erty in favour of the accused on superdnama on the following observations:

"This court is not a Civil Court and has no power to decide any dispute about the title to the property even the section does not authorise a Magistrate to decide which party is rightful owner of the property. Here the enquiry is limited to finding which party is entitled to possession of the property. In considering the question as to who be entitled to possession of the property, there is always a presumption that the person actually in possession of the property is the owner, thereof. The claim of the applicant is sup­ported by the maternal uncle of the parties and also the accused has not objected that he has not taken property forcibly from the applicant/ complainant. He stressed on this point that he is the owner of the property alongwith his sister. Therefore, I deem it proper that at this stage the interim custody is given to the applicant/com­plainant on Superdnama on the following condi-tions:-

1. That he shall not sell the same property and shall not change the shape of the same.

2. That he shall produce the same property be­fore this court if and when required by this Court."

2. The complainant has come up in revision. Ld. counsel for the petitioner submits that Ld. Magistrate was not justified in releasing the property in favour of the accused who had forc­ibly taken the property from the rightful owner. In support she relied upon Crimes XI 1-1987(3) Guhati and AIR 1962, Bombay but none of them lays down the prepositon that the property can not be released in favour of an accused. The per­son from whom a property is recovered and seized can be presumed to hold the entitlement to pos­ses the same until otherwise proved. Ld. trial Magistrate has for cogent reasons kept the prop­erty on the Superdnama of the accused and therefore no interference is warranted with the exer­cise of such discretion by the Ld. Magistrate es­pecially when the seized property has not been released finally but only as an interim arrange­ment. Therefore there is no merit in the petition which is dismissed.