Vishnu Sharma And Another v. State Of M.P .

1. The question involved in this case is a short one namely whether learned Magistrate was justified in passing appropriate orders keeping in view the requirements of section 451 of the Code of Criminal Procedure with regard to the seized property which is now the subject-matter of the case that is pending before him. On a prayer being refused in favour of the accused for granting custody of the property seized, the matter was carried in Criminal Revision but the Revisionary Court also upheld the order passed by the Magistrate giving rise to filing of this application under section 482, Criminal Procedure Code.

2. The order impugned is passed by the Judicial Magistrate First Class, Mhow. It is dated 15-12-2003 in Criminal Case No. 960/2003 which is upheld by the learned Additional Sessions Judge by impugned order dated 27-4-2004 passed in Cri. Revision No. 172/2004.

3. I have perused both these orders.

4. I am constrained to note that both the learned Judges i.e the J.M.F.C, Mhow as also the 3rd Addl. Sessions Judge, Mhow who decided the revision did not take note of the law laid down and explained by their Lordships of the Supreme Court in one of the celebrated cases reported in (2002) 10 SCC 283 : AIR 2003 SC 638, Sunderbhai Ambalal Desai v. State of Gujarat interpreting section 451 of Criminal Procedure Code.

5. It is in this case their Lordships interpreted the provisions of section 451 of the Code of Criminal Procedure and laid down the guidelines as to how and in what circumstances and under what conditions, an order releasing the property or its disposal can be passed by the learned Magistrate in respect of a property seized in a Criminal Case which is pending consideration before him.

6. When the law is laid down by the Supreme Court, Article 141 of the Constitution of India applies. It is the duty of all the courts in the country to follow the law laid down by the Supreme Court. Ignoring the law laid down by the Supreme Court vitiates all the orders passed, they cannot be countenanced. This is exactly what had happened in this case. I do not want to pass any order one way or the other i.e either in favour of the accused or against him. In this short matter I expect the Magistrate to take into account the law laid down by the Supreme Court in Sunderbhai's case (supra), apply its ratio, if applicable, because he is dealing with the case arising out of cases under section 451, Criminal Procedure Code and then pass appropriate orders after hearing the Public Prosecutor.

7. This order should not be taken to mean that the property seized has to be released in favour of the accused or otherwise. The matter has to be examined on facts, as also the relevancy of the seized material, its nature, its work, its requirement and then keeping into account the law laid down by the Supreme Court, a reasoned order should be passed. The Magistrate ought not have taken into account the cases reported in 1994 MPWN Note 199, Rajendra Kumar v. State of M.P, 1993 MPWN Note 65, Sunderlal Verma v. State of M.P, 1978 Cri. L.J 1432, Omnarain v. R.M Patil and 1988 MPLJ 583 : 1987 JLJ 586, Kanhaiyalal v. Union of India but should have been vigilant that we are now in 2004 when much water has flown on the interpretation of section 451, Criminal Procedure Code. It was the duty of the courts that they must always search for the latest issue of law on a point decided by Supreme Court.

8. Be that as it may both the orders referred above and impugned in this case are unsustainable and this court cannot subscribe the views taken therein.

9. As a result, the revision succeeds and is hereby allowed. Order dated 27-4-2004 passed by learned Addl. Sessions Judge, Mhow, in Criminal Revision No. 172/2004 is hereby set-aside.

10. The matter has to go back before the learned Magistrate to decide the application made for interim custody, strictly in accordance with law and keeping into consideration the law laid down by the Supreme Court in Sunderbhai's case (supra). As observed, the learned Magistrate will not only take into account the requirement of the guidelines stipulated in Sunderbhai's case (supra) but will also examine as to whether any case of release is made out or not.

C.C within a week.

Petition allowed.