Judgment:
K.P. Mohapatra, J.
1. This revision is directed against the order passed by the learned Sub-Divisional Judicial Magistrate, Berhampur, rejecting a petition Under Section 457 of the Code of Criminal Procedure 'Code' for short).
2. The relevant facts are narrated below. The petitioner is the owner of a passenger bus bearing registration No. ORC 4345. On 4-9-1985 the bus was found carrying 35 passengers at Dura on Berhampur-Gopalpur road. The Traffic Inspector of Chatrapur inspected the vehicle and noticed the following defects.
1. There was no route permit;
2. There was no R. C. book;
3. There was no fitness certificate;
4. There was no insurance certificate;
5. There was no passenger tax clearance certificate for the sum of Rs. 50,614/- assessed upto 30-9-13;
6. Tickets were not issued to any of the passengers;
7. The Conductor of the vehicle did not possess a Conductor's licence; and
8. The driver of the vehicle was not wearing a driver's badge.
Therefore, the Traffic Inspector seized the vehicle Under Section 129-A of the Motor Vehicles Act and Under Sections 15 and 17 of the Orissa Motor Vehicles (Taxation of Passengers) Act and produced the same before the Regional Transport Officer, Chatrapur. He did not tile any prosecution report against the petitioner and manifestly till now no prosecution report has been filed nor any case instituted against him in the Court of the Sub-Divisional Judicial Magistrate, Berhampur.
Soon thereafter, the petitioner filed a petition Under Section 457 of the Code before the learned Sub-Divisional Judicial Magistrate, Berhampur, praying for release of the vehicle. After hearing, the learned Sub-Divisional Magistrate held that he had no jurisdiction to pass an order Under Section 457 of the Code because, neither a prosecution report was filed nor the seized vehicle was produced before him. The aforesaid order was challenged in this Court in Criminal Revision No. 457 of 1985. This Court directed further enquiry in the presence of both parties to find out if the learned Sub-Divisional Judicial Magistrate had jurisdiction to effectively dispose of the petition Under Section 457 of the Code. In pursuance of the aforesaid order, a further enquiry was made and both the parties were heard. Ultimately, the learned Sub-Divisional Judicial Magistrate arrived at the same conclusion namely, he had no jurisdiction to pass an order Under Section 457 of the Code, and accordingly he once again rejected the petition.
3. The only point that falls for consideration is whether the learned Sub-Divisional Judicial Magistrate had jurisdiction to entertain and allow the petition Under Section 457 of the Code and whether he failed to exertise jurisdiction vested in him according to law. Section 457(1) of the new Code correspond to Section 523 of the old Code with some changes and is reproduced for easy reference :
'457. Procedure by police upon seizure of property : Whenever the seizure of properly 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 an 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 cannpt be. ascertained, respecting the custody and production of such property.'
An analysis of the above provision will show that it applies to all cases of seizure of property by any police officer and such seizure is reported to a Magistrate under the provisions of the Code but not produced before him It also provides for the procedure to be followed by the Magistrate for the disposal of the property. This provision came up for interpretation in this Court in a case reported in 1977 Cri. L.J. 1902, M. S. Jagi v. Subash Chandra Mohapatra, and a learned single Judge arrived at the following conclusions :
'(1) Whenever the seizure of the property by police is reported to a Magistrate, his jurisdiction to act further Under Section 457 accrues. Such report may be made either by a police officer or by any other person interested.
(2) The expression 'and such property is not produced before a Criminal Court during an inquiry or trial' in Sub-section (1) refers merely to a stage of investigation and not the stage of inquiry or trial. It is a condition precedent to the exercise of jurisdiction by the Magistrate Under Section 457.
(3) The expression 'may make such order as he thinks fit' limits the jurisdiction of the Magistrate to two alternatives viz., either to deliver the seized property to the person entitled to possession thereof, or to make such disposal, as he thinks proper, of the seized property, in which case he has a discretion as to manner of disposal.
(4) If the person entitled to possession is known, the Magistrate may deliver the property to him. Here again, he has a discretion in the matter. If the person so entitled is not known, then the Magistrate shall issue a proclamation requiring any person who may have a claim to the seized property to appear before him and establish his claim.'
In AIR 1978 S. C. 1282, Ram Prakash Sharma v. State of Haryana, Section 457 of the Code was made applicable to property seized by the police. Manifestly,therefore, Section 457 of the Code gives jurisdiction to a Magistrate whenever a seizure of property has been made by any police officer, such seizure is reported to a Magistrate under the provisions of the Code and such property is not produced before a Criminal Court during an enquiry or trial. It is also held in 1977 Cri. L J. 1902 (supra) that the Magistrate acquires jurisdiction for disposal of the seized property Under Section 457 if the factum of seizure of property by the police has been brought to the cognisance of the Magistrate by a petition by the aggrieved party or a petition is filed before the Magistrate claiming the seized property In this case, as rightly found by the learned Sub-Divisional Judicial Magistrate, the vehicle was rot seized by a police officer in accordance with the provisions of the Code. The factum of seizure was also not reported to him. The vehicle was not produced before a Criminal Court during an enquiry of trial. It was nowhere pleaded by the petitioner that the seizure of the vehicle was effected by a police officer in exercise of powers under the Code. On the otherhand, the seizure list, a copy of which was produced by the petitioner and which is not disputed by the oposite parties, manifestly shows that the seizure was effected by a Traffic inspector of the Transport Department under the provisions of Section 129-A of the Motor Vehicles Act and Under Sections 15 and 17 of the Orissa Motor Vehicles (Taxation of Passengers) Act or may be Under Section 17 of the Orissa Motor Vehicles Taxation Act because, it was contended at the time of argument that mention of the Orissa Motor Vehicles (Taxation of Passengers) Act was wrong and it should be read as the Orissa Motor Vehicles Taxation Act. The seizure list read as a whole does not disclose that the Traffic Inspector of the Transport Department was a police officer who exercised powers vested on a police officer under the Code. Mr. C. V. Murty, learned counsel appearing for the petitioner, did not establish that the Traffic Inspector who seized the vehicle was a police officer.
4. Peculiarly enough, the learned Standing Counsel of the Transport Department made the following statements in an affidavit on 21-8-1986.
(1) Traffic Inspectors are posted in two ways, namely, (a) by promoting officers of the Transport Department and (b) by borrowing officers from the State Police Department who are deputed from the parent Department to the Transport Department.
(2) The Inspector of Motor Vehicles in the present case is an officer of the State Police Department of the specially gazetted rank brought under deputation to the Transport Department.
Assuming what has been stated in the affidavit is correct, yet, the Traffic Inspector in the present case cannot be called a police officer who seized the vehicle while discharging his functions as such either Under Section 51 or under any other provision of the Code relating to seizure of property. It cannot, therefore, be said that while effecting seizure of a vehicle, the Traffic Inspector of the Transport Department acted as a police officer so as to attract the provisions of Section 457 of the Code.
5. I will now proceed to cite a few decisions and discuss the meaning assigned to the expression 'police officer' within the meaning of Section 457 of the Code. In AIR 1964 Patna 416, The State v. Ramyas Thakur, it was held that an order Under Section 523 of the old Code could be passed in respect of property seized Under Sections 51 and 550 of the old Code by a police officer. The said provision was not applicable for release of property seized under the provisions of the Bihar & Orissa Excise Act. In AIR 1966 S. C. 1746t Badaku Joti Svant v. State of Mysore, it was held that a police officer for the purpose of Clause (b) of Section 190 of the old Code could only be a police officer properly so-called according to the scheme of the Code of Criminal Procedure. In AIR 1969 Delhi 301, Assistant Collector of Customs v. Tilak Raj Shiv Dayal reliance was placed on the decision of the Supreme Court (supra) and it was held that a Customs Officer will not come within the ambit of 'police officer' as used in Section 523 of the old Code even if the expression be interpreted in a broad way so as to include officers other than the police officers properly so called. The powers which the police offices enjoy are powers of effective prevention and detection of crime in order to maintain law and order. Therefore, the provisions of Section 523 of the old Code were not applicable to the property seized by a Customs Officer under the Customs Act. A Division Bench of the Patna High Court in a case reported in AIR 1971 Patna 133, M/s. Traders Syndicate v. State of Bihar, relied upon the earlier decision reported in AIR 1964 Patna 416 (supra) and held that a Magistrate could not pass orders for the release of a vehicle Under Section 523 of the Code which had been seized under the Bihar & Orissa Excise Act unless the seizure itself was under his orders. Order under the aforesaid section could be passed in respect of property seized by a police officer Under Section 51 and 550 of the old Code. In a case reported in 1980 Cri. L. J. 762, Haru and Ors. v. State of Madhya Pradesh, the Madhya Pradesh High Court held that the expression 'police officer' used in Section 523 of the old Code or in Section 457 of the new Code cannot be construed so as to include officers of other departments In 57(1984) CLT 381, Sarat Kumar Malu v. The State of Orissa, it was held by this Court that Section 457 of the Code will have no application when the property in question has not been seized by a police officer in the case but by a forest officer. On a conspectus of the principle laid down in the aforesaid decisions, it is beyond the pale of any controversy that Section 457 of the Code gives jurisdiction to a Magistrate for disposal of property which has been seized by any police officer and not by an officer of any other department not being a police officer under any other enactment. If the aforesaid principle is applied to the facts of the case, it will be crystal clear that Section 457 of the Code is not applicable, because the seizure of the vehicle was made by a Traffic inspector of the Transport Department purporting to act under the provisions of the Motor Vehicles Act and the Orissa Motor Vehicle (Taxation of Passengers) Act or the Orissa Motor Vehicles Taxation Act.
6. Mr. C.V. Murty extensively argued regarding non-applicability of Section 129-A of the Motor Vehicles Act and Sections 15 and 17 of the Orissa Motor Vehicles (Taxation of Passengers) Act or Section 17 of the Orissa Motor Vehicles Taxation Act to the case in support of his prayer for release of the vehicle. He also challenged the authority of the Traffic Inspector to effect seizure of the vehicle. I do not wish in this proceeding to express opinion about non-applicability or otherwise of the aforesaid provisions. It is sufficient for me to say that a consideration of the above . submissions does not fall within the ambit of Section 401 of the Code and so this Court in exercise of its criminal jurisdiction cannot dispose of such matters which can best be disposed of in an appropriate proceeding before an appropriate-authority.
7. In the ultimate analysis the learned Sub-Divisional Judicial Magistrate having acted in . accordance with law in exercise of the jurisdiction vested in him, the impugned, order passed by him refusing to interfere Under Section 457 of the Code cannot be interfered with. The criminal revision is, therefore dismissed.