ORDER
Mansoor Ahmad Mir, J.
1. By the medium of this petition, the State has assailed the order dated 20th April, 2005, passed by 1st Class Judicial Magistrate (4th Additional Munsiff), Srinagar, whereby the vehicle bearing registration No. HR 26 M-6846 (Tata Indica) has been released on superdnama in favour of Bilal Sharnus, respondent.
2. Heard.
3. Mr. Rathore argued that impugned order be set aside because it is illegal and has been passed without jurisdiction. Further he prayed that this revision petition be treated as petition under Section 561-A of Cr. P.C., in order to quash the impugned order.
4. Mr. Chashoo stated that the impugned order is interlocutory one, so revision petition is not maintainable. The impugned order is legal one and has been passed rightly. The impugned order is not in any way abuse of the process of law.
5. Considered.
6. The interim order is interlocutory one, thus revision petition is not maintainable. My view is fortified by the judgment passed by this Court reported in 1981 Srinagar LJ 205.
7. Now I am dwelling upon the prayer of Mr. Rathore that this petition be treated as one having been instituted under Section 561-A of Cr. P.C.
8. The meat of the matter is whether the impugned order has been passed rightly or not and, whether the same is the abuse of the process of law.
9. Mr. Rathore stated that the impugned order has not been passed in terms of Section 516-A Cr. P.C. the order is without jurisdiction because neither the trial nor the enquiry has begun. Thus the order be quashed being abuse of the process of law and without jurisdiction.
10. Mr. Chashoo argued that order has been passed under Section 523 of Cr. P.C. and not under Section 516-A Cr. P.C.
11. It is profitable to reproduce Section 516-A of Cr. P.C. herein :–
516-A. Order for custody and disposal of property pending trial in certain cases. –When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay (or it is otherwise expedient so to do, the Court) may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
12. While going through this provision of law, Court can pass orders vis-a-vis re lease of property provided, the Court is conducting enquiry or trial. It is admitted case that neither enquiry is pending in the trial Court nor trial has begun.
13. While going through the record, it appears that the Magistrate has passed order in terms of Section 523 of Cr. P.C., because the report has been made wherein it is stated that the proceedings under Section 523 Cr. P,C. have been submitted to Magistrate, It is clear from the record that application for release has been made by the respondent and report has been called and then impugned order has been passed. Thus, it is clear that orders have been passed in terms of Section 523 of Cr. P.C.
14. It is profitable to reproduce Section 523 of Cr. P.C. herein :–
523. Procedure by police upon seizure of property taken under Section 51 or stolen. — (1) the seizure by any police officer of property taken under Section 51, or alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof or if such person cannot be ascertained respecting the custody and production of such property.
15. The Magistrate can pass order when the report is produced before the Court. It is not necessary that the police of their own shall submit report and that gives the jurisdiction. But when the interested party files an application and police files report, the Magistrate has the jurisdiction to pass orders.
16. The High Court of Orissa in case Krushna Charan Mohanty v. State of Orissa reported in 1989 Cri LJ 1025 has observed as under :–
3… If the fact of seizure is brought to the notice of the Magistrate by any party interested or even, by a party who applies for delivery of the property, It would be sufficient to give jurisdiction to the Magistrate to entertain and deal with the application under Section 457 of the Code. In fact, this question has been lucidly discussed in the case of M. S. Jaggi v. Subasechandra Mohapatra (1977) 44 Cur LT 39 : 1977 Cri LJ 1902: After analyzing the different provisions of the Code and considering Section 523 of the present Code, the learned Judge observed (at p. 1904) :–
…Even though there be no provision in the Code obligating the police to report its seizure, nevertheless, if the factum of seizure is reported to the Magistrate by sources other than the police or the fact of seizure otherwise comes to the knowledge of the Magistrate, he acquired jurisdiction under this section to pass appropriate orders’ in respect of the seized property. As in this case the factum of seizure was reported to him by the opposite party filing an application under Section 457, the Magistrate acquired jurisdiction to pass appropriate orders as he thought fit respecting the disposal of the seized property.
In this view of the matter, the order of the learned sessions Judge cannot be sustained and I would hold that the Magistrate had jurisdiction under Section 457 of the Code to pass appropriate order regarding release of the property and giving custody of the same.
17. Now, the question is whether the order has been passed rightly or wrongly and whether the same is abuse of the process of law.
18. The respondent herein has filed application and has annexed all the Photostat copies of the documents and also notice which appears to have been published in daily “Great Kashmir” by Regional Transport Officer, Srinagar, which reads as under :–
Whereas this office has received application from Mr. Bilal Shamus Tantray for change of registration in respect of vehicle No. HR 26 M 6846 under Section 47 of the Motor Vehicles Act, 1988.
The vehicles bearing Engine No. 83518, Chasis No. 88559 Model 2003 of Make indica.
It is therefore notified that if any person has any objection, in this behalf, he/she should file his objection in this office within 30 days from the date of publication of this Notice.
19. The objections have been invited by the Regional Transport Officer, Srinagar so that the change of registration can be effected.
20. While going through said documents and notice, the learned Magistrate has come to the conclusion that applicant has carved out a case and accordingly the learned Magistrate has passed the order and released the Vehicle on superdhama. The said custody is Custodia legis and it does not confer any right upon the respondent. He has been entrusted with, the vehicle on behalf of the Court and has to produce the same whenever required to do so. If during trial or enquiry me, prosecution proves that respondent is not entitled to the possession, the Court can pass orders either in terms of Section 516-A or 517 of Cr. P.C.
21. Thus the impugned order is not illegal and the learned Magistrate has exercised the jurisdiction rightly.
22. The Apex Court has held in case Sunderbhai Ambalal Desal v. State of Gujarat as under :–
7. In our view, the powers under Section 451, Cr. P.C. shouldexercised ex-pedltiously and judiciously. It would serve various purposes, namely :–
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation :
2. Court or the police would not be required to keep the article in safe custody.
3. If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and
4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.
21. However these powers are to be exercised by the concerned Magistrate. We hope and. trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451, Cr. P-C-are properly and promptly exercised and articles are not kept, for a long time of the police station, in any case, for not more than fifteen days” to one month. This object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly.
23. Keeping in view the command issued by the Apex, Court (supra), the learned Magistrate has passed the impugned order rightly.
24. In the given circumstances, the argument of Mr. Rathore fails.
25. Accordingly, impugned order is upheld and the revision petition is dismissed along with connected Cr, MP.(s). Interim direction, if any, shall stand vacated.