Back
1986 Supreme(Bom) 108
IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
G.D. Kamat, J.
S. Kapur.... Petitioner.
Versus
Bhalchandra G. Naik others.... Respondents.
Criminal Miscellaneous Application No. 62 of 1985, decided on 14-3-1986.
Advocates appeared :
J. Dias, Senior Counsel with P.J. Karkera, for petitioner.
S.K. Kakedkar, for respondent No. 1.
U.S. Kolwalkar, for respondent No. 2.
G.U. Bhobe, P.P., for respondent No. 3.
The Magistrate has the jurisdiction to modify an earlier order passed under section 457 of the Criminal Procedure Code, which is not a final order but an interlocutory order, and the Magistrate is required to determine who is entitled to the possession of the seized property on the basis of the facts and circumstances of each case.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 457 - CUSTODY OF SEIZED PROPERTY - MODIFICATION OF ORDER - JURISDICTION OF MAGISTRATE - ENTITLEMENT TO POSSESSION - FACTORS TO BE CONSIDERED.
Fact of the Case:
A truck was seized by the police from the possession of Respondent No. 2, Gadekar, based on a complaint filed by the Petitioner alleging theft. The Petitioner, claiming ownership of the truck, moved an application before the Magistrate seeking its custody. The Magistrate, after hearing the parties, passed an order delivering possession of the truck to the Petitioner on his executing a security bond. Subsequently, Gadekar filed an application claiming that he was entitled to the custody of the truck as it was given to him on hire by Respondent No. 1. The Magistrate, after hearing all the parties, passed an order directing the Petitioner to deliver the possession of the truck to Gadekar.
Finding of the Court:
The Court held that the Magistrate had the jurisdiction to modify the earlier order passed in favor of the Petitioner, as it was not a final order but an interlocutory order. The Court further held that the Magistrate was required to determine who was entitled to the possession of the seized property, but this determination had to be made on the basis of the facts and circumstances of each case. In the present case, the Court found that the Magistrate had considered all the relevant factors and had passed an appropriate order.
Issues: 1. Whether the Magistrate had the jurisdiction to modify the earlier order passed in favor of the Petitioner. 2. Whether the Magistrate was required to determine who was entitled to the possession of the seized property. 3. Whether the Magistrate had considered all the relevant factors and had passed an appropriate order.
Ratio Decidendi: 1. The Court held that the Magistrate had the jurisdiction to modify the earlier order passed in favor of the Petitioner, as it was not a final order but an interlocutory order. The Court relied on the decision of the Division Bench of the Bombay High Court in Shamrao Sampatrao Khanderai v. State of Maharashtra and another, Cri.L.J. 1457, which held that the custody and disposal of stolen property is not a final order but an interlocutory order and further that it can be modified after hearing all the concerned parties. 2. The Court held that the Magistrate was required to determine who was entitled to the possession of the seized property, but this determination had to be made on the basis of the facts and circumstances of each case. The Court relied on the decisions of the Mysore High Court in Yousoof Marakair v. State of Mysore and another, A.I.R. 1968 Mysore 203, and the Madras High Court in A.S.S. Ahmed Sahib v. Commissioner of Police, Madras and another, A.I.R. 1970 Madras 220, which held that the Magistrate is required to see as to who is the person entitled to possession. 3. The Court found that the Magistrate had considered all the relevant factors and had passed an appropriate order. The Court noted that the Magistrate had considered the documents placed on record, the fact that the Petitioner had already started civil litigations, and the fact that no charge sheet had been filed by the police even after 7 months. The Court also noted that the Magistrate had elaborately discussed the reasons for his decision in the impugned order.
Final Decision: The Court dismissed the Petitioner's petition, holding that the Magistrate had not acted without jurisdiction or in violation of the principles of natural justice, and that the order passed by the Magistrate was not perverse or occasioned a failure of justice.
2. When this matter came for admission, rule was granted and status quo was ordered.
3. From the stances taken by the parties it would be convenient to state facts. On 11th June, 1984 the applicant through his representative filed a complaint against the first respondent at the Mapusa Police Station that respondent No. 1 had removed the truck unlawfully and committed theft of the same. Hence the F.I.R. disclosed an offence under section 379 of Indian Penal Code. It is averred in the petition that the applicant is a proprietor of Yesh Constructions, Bombay and as such the owner of that truck bearing No. MWU 2789, that the respondent No. 1 after introducing himself through one Mr. M.D. Shah, a finance broker of Bombay, representing that he is the Managing Director of M/s. Dahej Minerals Ltd., owning mining concessions in Goa. For that matter some documents were shown which were in Portuguese purporting to be the concessions in relation to mines and that on account of some litigations the respondent No. 1 was in financial difficulties. It is then averred that from time to time large sums of money were given by the applicant to the first respondent totalling to Rs. 1,30,000/-; next on 17th November, 1983 the first respondent also requested the petitioner to give him the said truck on hire basis for the purposes of mining operations and believing in the representations made the petitioner gave his truck to M/s. Dahej Minerals Ltd. for one month only. No hire charges were paid nor the truck was returned and on 13th February, 1984 the first respondent informed the petitioner that the truck had met with an accident and the same has been removed to the garage for repairs. The some time in March 1984, the first respondent alongwith said M.D. Shah met the petitioner and made further representations that all legal battles concerning mining concessions have been decided in favour of the first respondent; that said M.D. Shah also represented that he is arranging an interest free deposit of Rs. 20 lakhs and once that is done the applicant would be paid of whatever advances made to respondent No. 1 as also the price of the said truck. The petitioner then mentions that accordingly an agreement was signed on 2nd April, 1984; that said M.D. Shah could not arrange the finance for the first respondent and, therefore, the first respondent failed to pay whatever advances he had received as also the price of the said truck. It is then averred that the applicant came to know that respondent No. 1 was not a trustworthy person and that M/s. Dahej Minerals Ltd.; was only a hoax as in the meantime the respondent No. 1 sent a letter dated 30th April, 1984. In the meantime the owner of Standard Garage, Porvorim, where the truck was being repaired, was contacted by the petitioner's representative and on showing him the ownership documents of registration requested the said garage owner not to hand over the truck to anybody or to the respondent No. 1; that when the petitioner's representative visited the said garage for taking delivery the said truck was missing from the garage and the garage owner told him that the first respondent had removed the truck on 12th May, 1984 in his absence without his knowledge. Accordingly, F.I.R. was lodged on 11th June, 1984 that there was a theft in respect of the said truck.
4. Soon thereafter the Officer of the Mapusa Police Station seized the truck on 16th June, 1984
