1. This is an application made under Section 561-A of the Code of Criminal Procedure to quash the combined order passed by the learned Judicial Second Class Magistrate, Vinukonda in Criminal Mis. Petition Nos. 161 and 196 of 1972 of his file.
2. The facts giving rise to this petition are the following: Chagamreddy Narasamma, wife of Kotireddy of Udicherla gave a report to the police at Bommarajupally under Sections 346, 380 and 366 I.P.C against her husband's brother Chagamreddy Venkateswara Reddy and another person Ganigipenta Siva Reddy. A case was registered by the said police and in the course of investigation the police recovered all the property referred to in the report (about ten heads of cattle) and they handed them over to a mediator by name Sri Nalagangula Koti Reddy of Udicherla. Two of the she-buffaloes delivered ten days prior to the date of petition and according to the allegations of Narasamma, the mediator and the accused were colluding with each other and were trying to make the property disappear and thus cause loss to her. She therefore prayed that the learned Magistrate may direct the delivery of the cattle seized by the police to her as she is entitled to the possession and ownership thereof. She undertook to produce the said cattle before court as and when she is so directed. The petition filed by Narasamma for that purpose is Cr. M.P 161 of 1972 under section 523 Cr. P.C Chagamreddy Venkateswara Reddy, aforesaid, filed Criminal Mis. Petition 196 of 1972 stating that he was implicated as an accused in Crime No. 30/72 of Bommarajupally Police Station on a false report given by aforesaid Narasamma against him and another, that the ten cattle mentioned in the repert did not belong to her, but they belonged to him alone, that the police have created a false mediator and handed the cattle to Sri N. Koti Reddi of Udicherla, that since she has applied by a petition seeking delivery of the cattle to her, he is also filing this petition for delivery of the cattle to him and that he undertakes to produce the cattle whenever required to do so and therefore prayed that the cattle may be delivered to him.
3. Both the petitions were clubed together, tried and decided by the Magistrate. The petitioner in Crl. M.P 161/72 gave evidence as P.W 1 and examined P.Ws 2 to 4 in proof of her version that the cattle belonged to her. On the other hand the petitioner in Crl. M.P 196/72 gave evidence as R.W 6 and also examined R.Ws 1 to 5 in proof of his claim to the cattle. The learned Magistrate considered the preliminary objection that an application under section 523 Cr. P.C was not maintainable and over-ruled it on the ground that the petition under Sec. 523 Cr. P.C would lie as the case is still under investigation and admittedly no charge sheet has been filed. Then the Magistrate considered the scope of the provision under section 523 Cr. P.C and held, following the decision of the Madras High Court in A.S.S Ahmed Saheb v. Commissioner of Police Madras (A.I.R 1970 Madras 220), that the expression ‘entitled to the possession’ is the sine quo non for the delivery of the property under that provision. The real question therefore, according to the Magistrate was, as to who was the real possessor of the cattle. Taking into consideration, the circumstances, that the petitioner in Cr. M.P 196/72 has not moved the court till after the petitioner in Cr. M.P 161/72 has approached the court and that he has kept silent for nearly two months even though his cattle were seized by the police in his absence from his cattle shed, would go a long way according to the Magistrate to improbablise his case that he is entitled to the cattle. According to the learned Magistrate if really the cattle belonged to him and they were not stolen property with him, it is but natural for him to have immediately rushed to the police and lodged a protest for the illegal seizure from his cattle shed. In the end after considering the evidence on both sides and the probabilities the learned Magistrate held that the petitioner in criminal M.P 161/72 was entitled to the return of the cattle. In that view Cr. M.P 161/72 was allowed while the other petition Cr. M.P 196/72 was dismissed. The mediator was directed to deliver the ten cattle to the complainant along with the calves, if any, delivered by the cattle during the period of custody.
4. It is this order which is now sought to be quashed in this petition.
5. Sri T.V Sarma, learned counsel appearing for the petitioner raised the following point:—section 523 Cr. P.C contemplates the immediate despatch of a report by the police about the seizure to a Magistrate. As there is no such report it) this case not only the seizure is illegal, but also the very foundation for giving jurisdiction to a Magistrate under Sec. 523 is absent in this case. As a part of this argument the learned counsel also submitted that a search under the Criminal Procedure Code has to be effected in accordance win sections 103 and 165, and in this case admittedly it has not been done as per those provisions. Secondly the learned counsel also argued that the rule in regard to delivery of property in case of this type is that the property should be delivered back to the person from where custody it was recovered by the police. Thirdly the order of the lower court does not decide anything and it is not a judgment at all. The learned Magistrate has discorded the entire evidence and has decided the case only on the probabilities. Fourthly he-submits that the reliance by the learned Magistrate on the case diary is illegal as it offends section 172(2) of the Criminal Procedure Code. He therefore prays that the order of the Magistrate may be quashed.
6. In reply to the aforesaid arguments Sri S.K Bhagawan, learned counsel appearing for the contesting respondents has submitted that the petitioner who has himself invoked section 523 Cr. P.C, in the lower court, cannot now say that provision does not apply, that the petitioner herein has already filed the suit O.S No. 375 of 1973 on the file of District Munsif's Court Narasaraoper for recovery of the cattle or their value, which is now pending, wherein a commissioner also has been appointed and therefore a decision one way or the other in this case now, would make the suit infructuous, that this is not a case for quashing the order under section. 561-A Cr. P.C and that the proper remedy of the petitioner was to have approached the Sessions Court in a Revision under S. 435 or S. 439 of the Cr. P.C and this is not a matter in which he can straight away come to the High Court even in a revision under these provisions, that a single petition for quashing is not maintainable against the common order, in two seperate petitions, that he is not in a position to say whether the police sent up a report to the Magistrate or not since the records have not come to this Court as this is a petition to quash the proceedings and not a petition for revising an order, when alone the records of the trial Court would have been received in this Court and that in any event irrespective of the report by the police before the Magistrate, the court has got jurisdiction to pass an order under section 523 Cr. P.C In support of his arguments the learned counsel relied upon two decisions, which will be referred to presently. He also urged that it not an inflexible rule that the property seized by the police need be returned to the same person from whose custody they were seized and it is for the Court consider as to who is entitled to the possession of that property. He also submits that the lower court has considered the entire evidence and the probabilities and therefore it is a proper judgment. Regarding the use of the case diary, the learned counsel submitted that it is not used as evidence, but only used to aid in its conclusions.
7. I will now deal with the respective contentions. Before I proceed to consider the said contentions it is necessary to state that the question of return of property seized by the police in the course of investigation arises under the Code in three possible ways; (1) where investigation is still proceeding, or where no charge sheet has been filed, the provision applicable being section 523 Cr. P.C (2) where the enquiry or trial his begun and the seized property is produced before the Court, the provision applicable being 516-A Cr. P.C and (3) where the enquiry or the trial is concluded the provision applicable being 517 of the Cr. P.C
8. The power of the police to seize the property is also contained in two sections, which provide for the search of the arrested person, (sections 51 and 53 Cr. P.C) and they contemplate the seizure of all articles on the person, except the wearing apparel then upon him, which may be seized by the police. The other provision is that contained in section 550 Cr. P.C Under this section any police officer may seize any property, which may be alleged or suspected to have been stoled or which may be found under circumstances, which create suspicion of the commission of any offence. In the case of such seizure, the police officer, if he is subordinate to an officer in charge of the police station, has to report the fact of seizure to his superior officer. The general provisions regarding searches under section 103 stipulate that a search has to be made in the presence of witnesses. Section 165 Cr. P.C enables the police officer Investigating into a crime to make a search in accordance with the provisions of Section 103 Cr. P.C
9. It is now necessary to extract the three sections, relating to the disposal of the property:—
Section 523 (1) The seizure by any police-officer of property taken under section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody production of such property-
Section 523(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain in and shall, in such cases, issue a proclamation specifying the articles of which such property consists and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.
Section 516-A. When any property regarding which any offence appears to have been committed or which appears to have been used for the commission of any office, is produced before any criminal court during any inquiry or trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold on otherwise disposed of.
Section 517(1) When an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it think fit for the disposal (by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or other wise) of any property or document produced before it or in it custody or regarding which any offence appears to have bee committed, or which has been used for the commission of an offence.
(2) When a High Court or a Court of Session makes ??? order and cannot through its own officers conveniently deliver the property to the person entitled thereto, such Court ??? direct that the order be carried into effect by the District Magistrate.
(3) When an order is made under this section such order shall not except where the property is livestock or subject to speedy and natural decay, and save as provided by sub-Section (4) be carried out for one month, or, when an appeal is presented, under such appeal has been disposed of.
(4) Nothing in this section shall be deemed to prohibit any Court from delivering any property under the provisions of sub-section (1) to any person claiming to be entitled to the possession thereof, on his executing a bond with or without sureties to the satisfaction of the Court, engaging to restore such property to the Court if the order made under this section is modified or ??? aside on appeal.
Explanation:— In this section the term ‘property’ includes I the case of property regarding which an offence appears to have been committed, not only such property as has been originall in the possession or under the control of any party, but also an property into or for which the same may have been converte or exchanged, and any thing acquired by such conversion or exchange, whether immediately or otherwise.
10. It is clear from section 523 Cr. P.C which relates to searche made under section 51 and also made under section 550 Cr. P.C that there shall be a report sent to the Magistrate forthwith by the police. It is ??? then that the Magistrate can consider the question of the disposal of ??? property to the person entitled to the possession thereof, and if such person cannot be ascertained, to direct is custody or production at the appropriate time. This Section as such does not show that the property has to be given to the person, from whom or where custody it is seized. It give the discretion to the Magistrate to decide the question about the ??? “entitled to possession”. This expression normally would mean, a lawful or rightful title to hold the property. This section cannot be ??? mean that placing of a report before the Magistrate by the police is Since ??? any application for the disposal of the ??? party. If the fact of the seizure is ??? any party interested in it, or even by a party, who applies for delivery of such property, it is sufficient to give Jurisdiction to the Magistrate to entertain the application and deal with it. In such a situation, the Magistrate himself may direct the police to file a report about siezure. Even if such a report is not filed inspite of such a notice, it would not stand in the way of the Magistrate disposing of an application for the delivery of such property no the person entitled to the same, who cannot be kept out of its custody merely by the inaction or negligence on the part of the police. To make the report of the police a condition precedent for invoking the section would be reading something into the section, which is not there. Moreover the section speaks about the disposal of the property seized in connection with the investigation of an offence. The property may be of special importance or necessity to the claimant against, whom no offence has been alleged or proved.
11. Section 516-A deals with the disposal of the property pending enquiry or trial. The Magistrate may either direct it to be sold or otherwise disposed of. Section 517 also similarly caters to a situation, which arises after the disposal of the case. It gives jurisdiction to the Magistrate either to direct its destruction or confiscation or delivery to the person claiming to be entitled to the possession thereof. Even this section speaks of delivery only to the person ‘Entitled to possession’ and not to the person from whose possession it was seized. A fair reading of these sections would indicate that it is not necessary that the delivery of the property should be made only to the person from whose custody it was seized by the police. A person has the authority to make out his right to possession in order to entitle him to a delivery under these provisions.
12. In Suraj Mohan v. State (AIR 1967 Guj, 126) Shelat J. also has adopted the same interpretation held by me as above stated. After dissenting from the view taken in Ghulam Ali v. Emperor (AIR 1945 Lah 47) the learned judge says as follows at page 129:—
“With respect, I am unable to agree with that view it is taken to hold that it is only on a police report and not on any application of any party affected by seizure of any such property, that the Court can pass the order under Section 523 of the Criminal Procedure Code. Apart from there being any such specific limitation imposed on the “Magistrate exercising his powers on being moved by any such party, a power to call for a report, on such information given to him is implicit in the power given to him to deal with such property seized by the police. If that were nor so, the effect of Section 523 would be meaningless, and even the provision contained therein may be turned nugatory. If the police officer so took in his head not to report about any such seizure for any length of time”.
13. With respect I agree with the above view. The same view has been adopted by the Kerala High Court in M.V Raman Kutty v. State (A.I.R 1970 Kerala 191).
14. The argument of Mr. Sarma that the Magistrate has to deliver possession only to the person from whose possession the property has been seized, is sought to be supported by a decision of Sri Bhimasankaram J. in Mutyalu v. State of Andhra (1956 An. W.R 677). That was a case in which the property was seized under section 51 of the Cr. P.C from the person who was searched and in that connection the learned judge made the following observation:—
“Under section 523 Criminal Procedure Code, which is the section which applies to the facts of the case the normal rule is that when property has been seized from a person by the police under section 51 and no charge-sheet is filed against him the property should be returned to him, unless he disowns any interest therein”.
15. In the case of seizure of property from the person there can be no difficulty and the rule is understandable. But even in such a case the learned Judge save that if the person from whom it is seized disowns any interest therein, then it is certainly open to a Magistrate to make an enquiry under section 523 Cr. P.C As the learned judge has put it, it is only a normal rule. It has got its own exceptions and it cannot be laid down as an inflexible rule that in all cases of seizure either under section 51 or 550 Cr. P.C the normal rule is that the property should be returned only to the person who was last in possession. It is for the Magistrate to make an enquiry into the question as to whether the person applying for its delivery is entitled to possession. The learned Counsel relied upon the decision of Desai J. in Purshottam Das v. State (AIR 1952 Allahabad 470). It was not a direct decision under section 523 Cr. P.C as we see from the following sentence at page 473.:—
“The disposal of the property is not governed by Sections 516-A and 517. There was no enquiry or trial before any criminal court nor was the property produced before the learned Magistrate. It is not a property governed by section 521. As it was not seized under section 550 its disposal is not governed by section 523. Though Section 523 does not specifically refer to section 550, it refers to those circumstances of seizure which are material in section 550. It is conceded that there is no other provision under which the order could have been passed by the learned Magistrate. It follows that the order under revision is not an order passed, or even required to be passed under the Code and must be treated as an administrative or executive order.”
16. Having said thus, the learned judge considered the alternative argument that the case would come under section 523 Cr. P.C and after considering all the case law no doubt made the following observation at page 478.
“But when the investigation does not result in conviction or even in prosecution, all that the police or the court can say is that the person who was last in possession of the property is the person entitled to its possession.”
17. With respect to the learned Judge, the rule cannot be laid down in such a general way, which admits of no exceptions. If this is followed as an inflexible rule, persons who unlawfully come into possession of properties, would be encouraged to claim that they should be given the possession of these properties seized from them merely because of the laches on the part of the police either in the investigation or in launching prosecution. The section is not intended to put a premium upon the unlawful activities or untenable claims based upon unlawful custody.
18. The learned counsel next placed reliance upon the decision in, In re B. Dasappa (A.I.R 1916 Madras 1109). In that case, a police constable who retained for himself a piece of gold found in a search for stolen property and which has been proved to be a part of the stolen property, and who has failed to report his possession to his superior officers, was found guilty of an offence under section 217 I.P.C This decision does not throw any light upon the question at issue in this case, The police may or may not be actionable under section 217 of the I.P.C which in any event is not the point arising for consideration at the present moment.
19. In this connection I may refer to a decision of Krishna Swamy Reddy. J. In A.S.S Ahmed v. Police Commissioner, Madras (A.I.R 1970 Mad. 220), interpreting the expression “the person entitled to the possession of the property”. Says the learned Judge at page 223 as follows:—
“These words cannot be equated with actual possession. Nor can they be equated with the expression “the person from whom the property is seized or taken.” A person may be in unlawful possession at the time it was seized though he has not committed the offence, and in that circumstance it cannot be said that he is entitled to possession. It must be a lawful possession. The test therefore is not the mere possession of property at the time of seizure, but as to who is entitled to lawful possession. The expression ‘entitled’ to possession, is the sine quo non for the delivery of property under section 523 Criminal Procedure Code.
20. I am in respectful agreement with above view.
21. The learned counsel for the petitioner relied upon the decision of the Supreme Court in Wazir Chand v. State of H.P (A.I.R 1954 S.C 415) wherein their lordships held that section 523 Cr. P.C had no application to the facts of that case. It was a case of seizure by police without any jurisdiction. Chamba police, at the instance of jammu Police seized some goods when they had no jurisdiction. It was therefore held that an application under section 523 Cr. P.C could not be made and its dismissal was not a bar to entertain an application under Art. 226 of the Constitution. This decision does not deal with the scope of section 523 of Cr. P.C
22. Moreover in this case the fact of seizure by the police, has been brought to the notice of the Magistrate on 15-9-1972 before the applications were made under section 523 Cr. P.C by both the parties, by means of a petition sent by the mediator, which is to the following effect:—
The Hon'ble Judicial 2nd Class Magistrate, Vinukond, Petition got written and sent by Neelagangula kotireddy S/o. Musalareddy of Udujerla illage.
H.C No. 435 of Bommarajupalli, P.S in Cr. No. 30/72 took a statement from me to produce 10 cattle whenever called upon by your court and handed over the cattle to me. I am feeding and watching them from 22-5-72. Bammaraiupalli P.S authorities gave me a notice d/13-9-72 to produce the cattle in Court. I gave them a statement that I will produce on 15-9-1972. But I did not (cannot) produce them on 15-9-1972 as I had to go to Palnad taluk and admit my relatives in Hospital as a person came (with the information) about their dangerous illness. After my return! will intimate Bommarajupalle police and produce before your court.
Sd/- Neelagangula Kotireddy, 14-9-1972,
Copy of this is sent to Bommarajupalle police station. Received. Judicial II class Magistrate, Vinukonda. This petition is received through one Chagamreddi on 15-9-1972 at 11.00 a.m
23. The Magistrate, was therefore appraised of the search and the entrustment of the cattle to the mediator and his undertaking to produce them before the Court. Both the parties have also mentioned in their applications that there was such a seizure, though each wanted to claim that the property seized, belonged to him.
24. The contention of Mr. Sarma about the search being in contravention of sections 103 and 165 Cr. P.C even if true would not vitiate the seizure because the fact of seizure in this case is beyond question (vide Radha Kishan v. State Of Uttar Pradesh , A.I.R 1963 S.C 822). The delay in receipt of occurance report also by the Magistrate was held not to make by itself the investigation tainted by any illegality or irregularity in the absence of any infirmity and prejudice to the accused. (Vide Pala Singh v. State of Punjab (1972) 2 SCC 640 : AIR 1972 S.C 2679).
25. I am therefore unable to agree with contention of the learned counsel on the above two points.
26. The third submission made by the learned counsel that the order of the lower court is not a judgment as it has discorded the oral evidence. The learned Magistrate has considered the oral evidence of both sides and taking it in the light of the probabilities has arrived at the conclusion, which he did. It is not for this court, sitting in 561-A, Cr. P.C to go into the correctness of that finding, which is one of fact.
27. The other submission by the learned counsel that the learned judge placed reliance upon the case diary in violation of Section 172(2) of he Cr. P.C also is equally unsustainable. The learned Magistrate referred to the case dairy only to satisfy himself that the police started investigation into this crime and in the course of that investigation made the necessary seizure. I do not therefore find any infirmity in that respect either. I am also not satisfied how this is a case for an order under section 561-A Cr. P.C Their Lordships of the Supreme Court in R.P Kapur v. State Of Punjab. (AIR 1960 S.C 866) have laid down that this power has to be exercised only in a proper case either to prevent the abuse of process of the court or otherwise to secure the ends of justice. Criminal proceedings must be tried under the provisions of the Code and the High Court should be loath to interfere with those proceedings at any interlocutory stage. The present case does not come under the three categories of cases mentioned by their Lordships in the above decision. The petitioner herein has got a remedy under sections 435 and 439 Cr. P.C by filing a revision before the sessions Court, or in exceptional cases to this court. (Vide Alapati ??? Murthy in re (1959 (2) An. W.R page I.) (Full Bench). He has not chose to adopt such a course. On the other hand he has invoked the inherent jurisdiction of this court under section 561-A Cr. P.C I am not satisfied that this is a case in which this court should quash the proceedings under that provision.
28. Moreover the petitioner has already resorted to a civil suit to establish his title to the cattle now in dispute. I do not therefore think there is any ground for interference in these proceedings.
29. The Criminal Mis. Petition is therefore dismissed.