A Judicial Magistrate lacks jurisdiction to release seized cash or valuables under Section 457 of the Code of Criminal Procedure when a valid warrant of authorization has been issued by the Income Tax Department regarding said property.

ORDER

This petition under Section 482 of Cr.P.C. has been filed for setting aside the impugned orders dated 30/01/2020 (Annexure P/1) passed in MJCR No.101/2019 passed by the Court of Special Railway Magistrate, Khandwa and also order dated 13/09/2022 (Annexure A/3) passed by the Court of I Additional Sessions Judge, Khandwa, District Khandwa.

2. The facts as elaborated in the memorandum of petition reveal that one Mehul Patel lodged a report on 26/03/2019 with Government Railway Police Thana, Khandwa, submitting that he was a resident of Ahmedabad and was working with the company named and styled as M/s Mectec. The said company is owned by Smt. Neena Kamlesh Shah which was being managed by her husband Shri Kamlesh Shah. It was further stated in the report that on 13/03/2019 he was travelling in train bearing No.11094 Mahanagri Express from Katni to Mumbai, with two bags containing Rs.30,000,000/- (Rupees Three Crore) of company and was heading towards Dadar Railway Station, for the business purpose. After crossing Chanera Railway Station, two persons approached the complainant by projecting themselves to be police officials and wanted to check and interrogate the complainant, for which he was taken to gate where two other persons were already standing there and two other persons came inside the coach. The complainant was engaged in conversation, later on, when the complainant returned to his berth inside the coach, he found that his bags were stolen. Thereafter, the FIR was lodged. The police conducted the investigation and then from five persons namely Sanjay, Akshay, Narayan, Rohit @ Monu and Devesh, recovered the cash of Rs.2,59,83,000/- and charge-sheet was filed in the competent Court Special Railway Magistrate, Khandwa under Sections 380 , 170, 120-B, 201 and 34 of IPC vide Crime No.619/2019.

3. During pendency of the trial, the present applicant moved an application under Section 457 of Cr.P.C. and prayed that the aforesaid amount i.e Rs.2,59,83,000/- be released on Supurdginama. The said application was rejected by the trial Court dated 30/01/2020, against which revision was preferred by the applicant. The same was also dismissed vide impugned order dated 13/09/2022. Assailing the aforesaid orders, this petition has been filed.

4. Senior Counsel contends that the orders impugned passed by the trial Court as well as Revisional Court, are unsustainable and there is complete failure on the part of both the Courts to appreciate that mere initiation of proceedings under Section 132 A(1)(c) of Income Tax Act, 1961, does not preclude a Judicial Magistrate to exercise the powers conferred under Section 457 of Cr.P.C. Counsel contends that the trial Court proceeded to reject the application while observing that as "a warrant of authorization" has been issued under Section 132 A(1)(c) of Income Tax Act, 1961, then powers under Section 451 and 457 of Cr.P.C. cannot be exercised. It is contended by the counsel that the Court was required to see that the present applicant was the only claimant in respect of the cash and in order to demonstrate the right of the applicant as regards cash which was recovered, numbers of documents were produced which are detailed in paragraph 11 of the order of the Revisional Court and as per the income-tax return, which was being filed by the applicant, the applicant was in possession of the cash much more than what was stolen and later on recovered. Counsel also contends that the Apex Court in the case of Vindhya Metal Corporation Vs. Commissioner of Income-Tax reported in 1997 (5) SCC 321 has held that mere unexplained possession of a larg