The Magistrate has the power to pass orders regarding the custody of a property that has been attached by the police during the investigation under the Code of Criminal Procedure, 1973.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 457 - INTERPRETATION - MAGISTRATE'S POWER TO PASS ORDERS REGARDING CUSTODY OF PROPERTY DURING INVESTIGATION - SCOPE AND CONDITIONS.
Fact of the Case:

The applicant filed a revision against an order passed by the Judicial Magistrate, First Class, Darwha, directing that truck No. MHV-5232 be delivered to Keshaorao Narayanrao Bongirwar (non-applicant No.2) on his executing a supratnama in the amount of Rs. 30,000. The truck was originally registered in the name of the applicant in the Regional Transport Officers record. The applicant's case was that he obtained a loan of Rs. 9,000 from non-applicant No.2 and executed a blank Form for the transfer of the truck in the name of non-applicant No.2. However, the truck remained in the possession of the applicant. It was alleged that on December 9, 1976, non-applicant No.1 (son of non-applicant No.2) committed theft of the said truck by removing it from the Arni bus-station without the consent of the applicant. The applicant made a report about this theft to the police on December 30, 1976. The police investigated the matter and the truck was attached from non-applicant No.1. On December 30, 1976, non-applicant No.2 filed an application to the Judicial Magistrate, First Class. Darwha, alleging that he had purchased the truck from the applicant on March 21. 1976 and that he had been plying the truck since that time. He stated in the application that the applicant has executed a sale receipt and other documents for transferring the vehicle in the record of the R. T. O. His grievance is that the police seized the truck on the basis of an incorrect complaint of the complainant. He, therefore, prayed that the truck be returned to him.
Finding of the Court:

The court held that the provisions of section 457, Criminal Procedure Code are sufficiently wide so as to cover the case where the Magistrate is called upon to pass an order about disposal or custody of a property during investigation stage of a matter. Thus, the impugned order is not liable to be set aside simply because it was passed when the matter was under investigation and when no inquiry or trial was pending before the Magistrate.
Issues: 1. Whether a Magistrate has the power to pass orders regarding the custody of a property that has been attached by the police during the investigation under the Code of Criminal Procedure, 1973? 2. Whether the interpretation of section 457, Criminal Procedure Code, by the Allahabad and Andhra Pradesh High Courts, restricting the Magistrate's power to pass orders regarding the disposal of property during the investigation stage, is correct?
Ratio Decidendi: 1. The court interpreted section 457, Criminal Procedure Code, and held that the Magistrate has the power to pass orders regarding the custody of a property that has been attached by the police during the investigation. The court reasoned that the provisions of section 457 are sufficiently wide to cover cases where the Magistrate is called upon to pass an order about disposal or custody of a property during the investigation stage of a matter. 2. The court disagreed with the interpretation of section 457, Criminal Procedure Code, by the Allahabad and Andhra Pradesh High Courts, which restricted the Magistrate's power to pass orders regarding the disposal of property during the investigation stage. The court held that such an interpretation would create a lacuna in the Code of Criminal Procedure, as there would be no provision for the Magistrate to pass orders regarding the custody of property during the investigation stage.
Final Decision: The court dismissed the revision application and discharged the rule.

JUDGMENT-The applicant has filed the present revision against an order passed by the Judicial Magistrate, First Class, Darwha, in Miscellaneous Criminal Case No.1 of 1977, directing that truck No. MHV-5232 be delivered to Keshaorao Narayanrao Bongirwar (non applicant No.2 in this proceeding) on his executing a supratnama in the amount of Rs. 30,000. The supratnama is to contain a term that non-applicant No.2 should produce the property whenever required.

2. Truck No. MHV-5232 originally belonged to the applicant (who is the original complainant). The truck was registered in the name of the applicant in the Regional Transport Officers record. The applicant's case in brief in that he obtained a loan of Rs. 9,000 from non-applicant No.2. He executed a blank Form for the transfer of the truck in the name of non-applicant No.2. However, the trucks remained and continued in possession of the applicant. It is alleged that on December 9, 1976, non-applicant No.1 (who is the son of non-applicant No.2) committed the theft of the said truck by removing it from the Arni bus-station without the consent of the applicant. The applicant made a report about this theft to the police on December 30, 1976. The police investigated the matter and the truck was attached from non-applicant No.1. On December 30, 1976, non-applicant No.2 filed an application to the Judicial Magistrate, First Class. Darwha, alleging that he had purchased, the truck from the applicant on March 21. 1976 and that he had been plying the truck since that time. He stated in the application that the applicant has executed a sale receipt and other documents for transferring the vehicle in the record of the R. T. O. His grievance is that the police seized the truck on the basis of an incorrect complaint of the complainant. He, therefore, prayed that the truck be returned to him.

3. The applicant resisted the application. He contended that he had not sold the truck to non-applicant No.2 and that there was only a loan transaction of R.s. 9,000. According to him, in connection with that loan transaction he has executed a sale chit in favour of non-applicant No.2 and has also signed certain forms for transferring the vehicle in favour of non-applicant No.2 in the record of the R. T. O. The applicant contended that inspite of this, the truck continued to be in his possession and he lost the truck on December 9, 1976, as alleged in his complaint. He, therefore, prayed that the application of non-applicant No.2 be dismissed. It was also alleged by him that the Court has no jurisdiction to pass any order as the investigation of the case was not complete till then.

4. The learned Judicial Magistrate, First Class. Darwha, heard this matter." The parties produced certain documents and advanced arguments. Thereafter the learned Magistrate came to the conclusion that non-applicant No.2 has proved that he was entitled to possession of the truck and that an order in his favour was necessary. Accordingly an order has been passed and the applicant has preferred this revision against that order.

5. The first contention that has been raised by Mr. Lambat for the applicant is that under the Code of Criminal Procedure, 1973, a Magistrate has no power to pass any order regarding the custody of a property that has been attached by the police during the investigation. According to him, such a power was vested in the Magistrate under section 523 of the old Code of Criminal Procedure, 1898, but corresponding new section 457 does not empower the Magistrate to pass any such order. To appreciate this contention, it will be convenient to refer to the provisions of sections 451, 452 and 457 of the Code of Criminal Procedure, 1973. Under section 451, a Criminal Court is empowered to pass an order, during any enquiry or trial, for proper custody of the property that has been produced before that Court. Section 452 of the Code provides that a Criminal Court, on conclusion of an enquiry or trial, may pass an orde

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Judicial Analysis