1970 P Cr (PLP)

During the pendency of inquiry of trial of the case the complainant filed a petition on 4‑5‑68 before the learned Magistrate praying that the machine should be kept in the jimma of the third party for its safe custody and should not be left with the accused. The machine having already been seized by the local police, the learned Magistrate accepted the prayer of the complainant and accordingly ordered that the machine in question should be kept in the jimma of the Chairman of the local Union Council, Jaldi. The accused petitioner challenged the propriety of the above order of the Magistrate dated 4‑5‑68 before the Sessions Judge, Chittagong under section 438 of the Code of Criminal Procedure but the learned Additional Sessions Judge after hearing the parties rejected the motion. Hence the present petition before this Court. Mr. Abu Taher Chowdhury, the learned Advocate appearing for the accused petitioner has argued that the paddy husking machine having not been produced before the Court in terms of section 516‑A of the Code of Criminal Procedure, the learned Magistrate was not justified in passing the impugned order. He wants to say that a criminal Court cannot make any order for temporary custody of any property under section 516‑A of the Code until the said property is produced before the said criminal Court. The learned Advocate in this connection, relies on the case of Ramshesting Arjunsing v. Deoji Kalyanji (A I R 1942 Bom. 42). The point raised by the learned Advocate is a fine one and does not seem to have been considered in any previous decision of this Court. Section 516‑A empowers the Criminal Court to pass order for custody and disposal of property pending trial in certain cases. The section runs as follows :‑ "When any property regarding which any offence appears to have 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, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise deposed of." It is apparent from the above section that pending the con clusion of the inquiry or trial, a Criminal Court may pass order for proper custody of any property when the 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 the Criminal Court. The words "produced before any Criminal Court" mentioned in the section are very significant. It requires to be seen what these words actually mean and what interpretation a Court may put to this expression. If the expression "produced before any Criminal Court" is allowed to mean that the property must be before the Court, then there .nay be occasion where it may be difficult to fully comply with the same. There might be cases where it would be physically absurd to produce then property before the Court. In my opinion the expression produced before any Criminal Court" should be so interpreted as to cover cases in which it may not be possible to produce the property '~ before the Court or to which the Court may, instead of directing the property to be produced before the Court, direct that the property be put in charge of jimmadar or any other person. Though it is true that under section 516‑A of the Code an order can be made only when the property concerned in the offence) is produced in Court there may be cases where it may not be possible to produce tire property before the Court or it may be to the custody of a jimmadar. So the words "produced before any Criminal Court" mentioned in the section ought to be so interpreted as to cover such cases as well. A question of almost similar nature came up for consideration to the case of Shatz zarah Sin?h v. Emperor (A 1 R 1929 Lah. 658). In that case the jimmadar executed a bond to thl: police undertaking to produce the bullocks on demand before a Court. On a particular date, the Magistrate directed the jimmadar to produce the bullocks but he failed to produce them and executed another bond to produce the bullocks when called upon to do se In this connection section 516‑A of the Code was considered std interpreted by a Division Bench of the Lahore High Court. The Court considering all aspects of the matter observed as following:‑ "It is however, to be noted that the b. (locks were not actually produced before the Magistrate on 19th January 1928, and the real contention raised by the petitioner is that under the circumstances it cannot be predicted that the bullocks were "produced before the Court during the enquiry or trial" in; the sense in which these words are used in section 516‑A. It is, no doubt, true that that were not actually produced in Court but it seems to us that the petitioner, having already received their custody on giving an undertaking to produce them, did by executing the bond on 19th January 1928, waive the necessity of their production in Court and return to him. In other words he admitted that he received the custody of the bullocks from the Court on that date. We are of opinion that such a bond is covered by the provisions of section 516‑A and it is not open to the petitioner to raise the objection that the bond was not executed under the section merely because the bullocks were not actually produced in Court." I find no reason to differ with the principles laid down above. The case reported in A I R 1942 Bom. 42 seems to have taken a very extreme view. According to that decision the power of a Criminal Court to make orders for temporary custody is limited by the language of the section to property which is produced before it and the Court may pass orders when the property can fairly be said to have been produced before it. With all regards to the learned Judges. I shall say that if the view there is accepted as a correct then there may be cases in which it may be difficult to produce the properties before the Court and as a result, there may be occasions of failure of justice in genuine cases merely due to non‑production of the properties in question. I, therefore, find it difficult to give such a rigid interpretation to the words "produced before any criminal Court", mentioned to section 516‑A, Cr. P. C. In my opinion, the expression "produced before any Criminal Court" should be given liberal interpretation and the Court may, in a fit case, order for temporary custody under section 516‑A even without its physical production before it, on satisfaction that the same had been seized by the police and left in the custody of a jimmadar on his executing a bond to produce the property before the Court at any time on demand. In the instant case the property concerned is a paddy husking machine and it is difficult to produce such a heavy machine physically before the Court. Its non‑production before the Court does not affect the order dated 4‑5‑68 passed by the Magistrate under section 516‑A, Cr. P. C. Hence T am unable to accept the contention, of the learned Advocate. The gievance that the Chairman of the local Union Council, Jaldi is behind the case and he is interested in the matter and as such the machine cannot be kept in the jimma of the said Chairman, has no substance. The accused in his petition dated 27‑4‑68 before the learned Magistrate made no such allegations against the Chairman. This grievance was made for the first time before the learned Additional Sessions Judge. The learned Judge in his judgment dated 6‑8‑68 considered all aspects of the case and also made an observation in favour of the accused. The accused petitioner could have very well drawn the attention of the learned Magistrate to the said observation. For the reasons stated above, this Rule is discharged. The records of the case may be sent down at once for expeditious disposal. Rule discharged.