Judgment:
A.D. Tated, J.
1.This Criminal Writ Petition is directed against the order dated 21st November, 1984 passed by the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay, rejecting the application of the petitioner for return of the property which was seized by the police in Criminal Case No. 84 of 1984 and the order of the learned Additional Sessions Judge, Greater Bombay dismissing the revision petition filed by the petitioner against the said order of the learned Additional Chief Metropolitan Magistrate. The facts necessary for the decision of this petition in brief are that the petitioner obtained a loan of Rs. 1,22,000/- from the complainant on 3-2-1984 and on that date the petitioner-accused executed one Power of Attorney, two Promissory Notes, one for Rs. 87,000/- and another for Rs. 85,000/- and also sworn one affidavit. According to the complainant, the accused promised to sell to him Flat No. 306 and two garages situated in Pushpakunj Co-operative Housing Society Ltd., A Road, Churchgate, Bombay-20 for Rs. 3,67,000/- and that the complainant paid him the full amount. Later on it is alleged that the complainant found that the accused was not full owner of the said flat and there were income-tax dues and the flat was auctioned for the recovery of those dues by the Income-tax Department. Realising that he has been cheated by the accused the complainant reported the matter to the Additional Commissioner of Police, General Crime Branch, C.I.D. Bombay. On the basis of the said report the offence under section 420 I.P.C. was registered. During the investigation of the offence the Police seized moveable and immoveable property from the possession of the accused. It transpired during the investigation that the amount the accused obtained from the complainant was utilized by the accused for purchasing the said property. The property seized by the Police on 24-6-84 include (i) residential Flat No. 11, 1st Floor, Aarati Building, Gayatri Mahatre Road, Dahisar, Bombay and (ii) Shop No. 112, Jeevan Bima Nagar Shopping Centre, Condominium, S.V. Road, Borivli (West), Bombay 92. According to the petitioner, besides the above immoveable property, some documents, cash amount of Rs. 2,600/- and one wrist watch Citizen automatic were also seized by the Police.
2.It is the case of the petitioner that the property seized by the Police was not obtained by him from the amount that he got from the complainant. According to him, there were many transactions between him and the complainant and during the transactions he executed certain promissory notes and other documents in favour of the complainant and agreed to repay the amount after two years as has been mentioned in the pronotes. The petitioner submitted an application to the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay for return of his properties. The said application was opposed by the complainant. The learned Additional Chief Metropolitan Magistrate found that the flat and the shop was the property involved in the offence. In case the prosecution case was correct. According to him, the petitioner was not entitled to the return of the said property. Hence he rejected the application of the petitioner. The Revision preferred against the order of the learned Additional Chief Metropolitan Magistrate was dismissed by the learned Additional Sessions Judge, Greater Bombay.
3.The learned Counsel for the petitioner contends that the petitioner had entered into an agreement to purchase the residential flat No. 11 before he obtained money from the complainant. According to the learned Counsel for respondent No. 2, the agreement in question is dated 20th April, 1984 though in the body of the agreement some payments were shown to have been made earlier. As regards the Shop No. 112, Jeevan Bima Nagar Shopping Centre, S.V. Road, Borivli, Bombay, it was admittedly purchased after 3rd February, 1984 i.e. after the accused obtained money from the complainant. It is the prosecution case that the petitioner cheated the complainant and fraudulently obtained from him huge amount to the extent of Rs. 3,67,000/- and utilized that amount for purchasing the aforesaid immoveable and moveable property seized by the Police in this case. Both the courts below found that the property in question is involved in the offence for which the charge-sheet has been filed against the petitioner on 24-10-1985 in the Court of the Metropolitan Magistrate, 23rd Court, Esplanade, Bombay. As the property prima facie appears to be involved in the offence alleged against the petitioner the courts below were right in rejecting the application of the petitioner for returning the property to him.
4.The learned Counsel for the petitioner pointed out to me that Shop No. 112 which was seized by the Police from the possession of the petitioner was handed over by the Police to the complainant along with the furniture therein and the complainant is running his cloth-shop there. He submits that without the orders of the learned Metropolitan Magistrate the Police could not hand over the possession of Shop No. 112 to the complainant, under the provisions of section 457 of the Criminal Procedure Code. The learned Counsel for respondent No. 2 on the other hand contends that as per the understanding between the complainant and the accused, the accused on 17-8-84 handed over the key of the said shop to the complainant and accordingly he got the possession of the shop on 20-8-1984. He has not been able to show me any order of the learned Metropolitan Magistrate for delivering possession of the Shop No. 112 by the Police to the petitioner. The police had seized the shop along with the furniture and other moveable articles in that shop on 24-6-84 and the seizure thereof was reported to the Metropolitan Magistrate. Section 457 of the Criminal Procedure Code embodies the procedure to be followed by the police upon the seizure of the property. It reads as follows :
'(1) Whenever the seizure of property by any Police Officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during the inquiry or trial, the Magistrate may 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.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.'
The Police had seized and sealed the property and, therefore, neither the accused nor the complainant could have without the orders of the Court taken possession of the property. The Police also could not deliver possession of the property either to the complainant or to the petitioner without the orders of the Metropolitan Magistrate under section 457 of the Criminal Procedure Code. The learned Counsel for the petitioner states that the petitioner never handed over the key to the complainant and according to him, the Police had taken possession of the property and they had put the property under lock and key and, therefore, the question of the petitioner handing over the key to the complainant does not arise. It is necessary that the Police Commissioner, Greater Bombay should inquire how the property which was taken in possession by the police in this case was handed over to the complainant without the orders of the Metropolitan Magistrate. The learned Metropolitan Magistrate shall call for a report from the Police Commissioner and take necessary action in the matter. In the meanwhile, the Police Commissioner shall immediately seize the property and shall keep it sealed. The Metropolitan Magistrate on receiving report of the Police Commissioner and after hearing the Counsel for the parties shall pass appropriate order according to law.
5.In the result, the petition is dismissed and the rule is discharged subject to the observations and action to be taken by the Police Commissioner and the Metropolitan Magistrate indicated above.