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2014 Supreme(Gau) 569
HIGH COURT OF GAUHATI
C.R. Sarma, J.
Election Commission of India – Appellants
Vs.
State of Nagaland – Respondent
Criminal Petition No. 250 of 2013
Decided On : 16.05.2014
For Appellant/Petitioner/Plaintiff: S. Shyam, A.M. Bora, A. Dhar and K.K. Das.
For Respondents/Defendant: P. Choudhury, S. Bhuyan and T. Aao, G.A.
Headnote:
Code of Criminal Procedure, 1973 – Sections 482, 401, 451 – Order Challenged – By filing this application, under Section 482 read with Section 401 of the Code of Criminal Procedure petitioner has challenged the order, passed by Sessions Judge, Wokha, in Criminal Misc. Case – Held, It can be concluded that, due to non production of the seized money, before the learned Sessions Judge, the learned Sessions Judge had no jurisdiction to release the seized money, during the investigation period, that too during the pendency of another (first) application. – The impugned order is found to be not in conformity with the statutory provision, prescribed u/s. 451 Cr. P.C. – Impugned order, passed by the learned Sessions Judge, can not stand the test of law. – Hence, the order, not being in conformity with the statutory provision, can not be maintained. – From the above, it is clearly found that the learned Sessions Judge acted without jurisdiction in passing the impugned order and as such, the said unlawful order can not be allowed to continue. – An order, if manifestly appears to be against the statutory provision or hit by any legal bar, then the jurisdiction under Section 482 Cr. P.C. can be invoked to rectify the illegality. – In the case of Bhajanlal 1992 (1) SCC 335 also it has been held that the order passed against expressed legal bar, is liable to be interfered with under Section 482 Cr. P.C. – There is no difficulty in understanding that the High Court, in exercise of jurisdiction under Section 482 Cr. P.C. can exercise its power of interference to prevent unauthorized exercise of power violating the statutory provision resulting miscarriage of justice and abuse of process. – Impugned order, aforesaid is set aside – Petition Disposed of
C.R. Sarma, J.
1. By filing this application, under Section 482 read with Section 401 of the Code of Criminal Procedure (for short, Cr. P.C), the petitioner has challenged the order, dated 15.03.2013, passed by the learned Sessions Judge, Wokha, in Criminal Misc. Case No. 2 of 2013 (arising out of G.R. Case No. 19 of 2013). The facts of the case, as may be necessary for disposal of this petition, may, in brief, be stated as follows:
On 18.02.2013, 17th Assam Rifles Wokha Personnel, while conducting routine checking at Wokha, Kohima (Nagaland) intercepted a Scorpio vehicle, escorted by three Police vehicles and found some arms and ammunitions including cash amount of Rs. 1,10,00,000/- (Rupees One Crore Ten Lakhs) and some bottles of liquor in the said vehicle, in which Mr. Imkong L. Imchen, Home Minister, Government of Nagaland and four other persons were travelling.
2. Hav. Hoshiar Singh of 17th Assam Rifles, Wokha, by filing a complaint handed over the said seized articles and the money to S.P. Wokha and accordingly a criminal case, being WKA PSC/ No. 0019 of 2013 under Sections 171(E)/177(H)/188 IPC read with Section 25(AA) of Arms Act, R/W Section 44 NLTP Act, R/W 77(3) of Representation of Peoples (for short, R.P. Act) Act, 1951 was registered and the said persons with articles aforesaid were taken to the Wokha Police Station.
3. On being so handed over, the said recovered articles, which were seized by the Police, in the Police Station, as per seizure memo and Police launched investigation into the matter.
4. The accused persons were remanded to judicial custody, on 20.02.2013, by the learned Magistrate and they approached the learned Sessions Judge, Wokha, seeking release on bail. The learned Sessions Judge granted interim bail till 15.03.2013, on certain condition in favour of all the accused persons.
5. During the investigation period, the respondent No. 2, in his capacity, as the President of a political party, namely, Nagaland Peoples Front, filed an application before the Deputy Commissioner, Wokha seeking custody of the seized money aforesaid. Though the said petition was pending before the Deputy Commissioner, Wokha, the respondent No. 2, again, on 05.03.2013, approached the learned Sessions Judge, Wokha seeking release of the seized money under Section 451 Cr. P.C. and the learned Sessions Judge, by the impugned order, dated 15.03.2013, released the seized money in favour of the respondent No. 2, subject to execution of an undertaking to the effect that the seized money shall be produced before the Court, if so required.
6. Aggrieved by the said order of release of the seized money, the petitioner, i.e. the Election Commission of India, has come up with this criminal petition for setting aside the impugned order, dated 15.03.2013, on the ground that the learned Sessions Judge had no power to release the seized money under Section 451 Cr. P.C., during the pendency of the investigation and that, the learned Sessions Judge committed manifest error of jurisdiction by passing the impugned order. Another ground, taken by the petitioner, is that the seized money, not being produced before the Court, the learned Sessions Judge had no jurisdiction to pass order for release the seized money in favour of the respondent No. 2 and that the observation, made by the learned Sessions Judge, regarding ownership of the seized money was not lawful.
7. The respondent No. 2 contested the petitioner's prayer, by filing an affidavit-in-opposition and supported the impugned judgment and order, passed by the learned Sessions Judge. It has also been contended that the petitioner has no locus standi to challenge the impugned order.
8. The petitioner, by filing an affidavit-in-reply, has denied the allegation of suppression of facts and absence of locus-standi.
9. I have heard the learned Counsel, appearing for both the parties, perused the criminal petition, the affidavit-in-opposition, the reply to the affidavit-in-opposition, the impugned
