041-NLR-NLR-V-71-MARIYATHASAN-Petitioner-and-MARGARET-ROSE-wife-of-Mariyathasan-Respondent.pdf
164
Mariyathasan v. Rose –
1968Present: Tamblah, i.
MARIYATHASAN, Petitioner, and MARGARET ROSE (wife ofMariyathasan), Respondent
8. C. 471/67—Application in Revision in M. C. Jaffna, 33353
Criminal Procedure Code—Sections 413 and 419—Seizure of movable property byPolice—No offence proved against accused—Jurisdiction of Magistrate to dealwith the property seized—Scope.
When a police officer seizes any property alleged to have been stolen but doesnot proceed with the case, the Magistrate has no jurisdiction to order therestoration of the property to a person other than the person from whosepossession it was taken.
Sugathapala v. Thambirajah (67 N. L. R. 91) not followed.
A.PPLICATION to revise an order of the Magistrate’s Court, Jaffna.
R.Manikkavasagar, for the petitioner.
D. (htraswamy, Crown Counsel, for the Attorney-General.
Cur. adv. twit.
TAMBIAH, J.—Mariyathaean v. Bose
165
February 25, 1968. Tambiah, J.—
The petitioner, who is the husband of the first claimant-respondent,churned car No. EY 5558 which was seized by the Police in connectionwith this case. On a complaint of theft made by the brother of thefirst claimant-respondent, this car was taken from the house of thepetitioner.
In his affidavit the petitioner alleges that he bought this car on 8.10.64and registered it in his name on 12.12.64. He lost possession of the caron 2.12.64 and regained possession on 1.9.66. It was while the car wasin his possession that the Police seized the car. The fact that the carwas taken from the possession of the petitioner by the Police is notcontradicted.
Inquiries revealed that there was a dispute between the petitioner andthe 1st claimant-respondent, his wife, and that they were living inseparation. After inquiries the Police did not proceed with any action.On an application made by the Police the first claimant-respondent wasnoticed. Both the petitioner and the first claimant-respondent maderival claims to this car. The learned Magistrate held an inquiry and heldthat the true owner of the car was the first claimant-respondent andordered that the car be handed over to her. The petitioner, appealedfrom this order and the appeal was rejected on a preliminary objectionon the ground that he had no right of appeal. Thereafter he has filedthis application in revision. The first claimant-respondent did notappear at the hearing but on being noticed the Attorney-General wasrepresented by the learned Crown Counsel.
It has been held in a number of cases that when the Police seize amovable property and do not take any action, the property should bereturned to the person from whom it was taken. In Punchinona v.Hinniappuhamy1 H. N. G. Fernando, J. (as he aves then) held thatwhere the seizure by a Police officer of property alleged or suspected tohave been stolen is reported to a Magistrate under section 419 of theCriminal Procedure Code, the Magistrate, if he does not consider officialcustody to be necessary, has no alternative but to order the property tobe delivered back to the person from whose possession it was taken. TheMagistrate has no power to order the property to be given to any otherperson on the ground that he is the true owner. This view hasbeen followed by him later in Piyadasa v. Punchi Banda 8. However, inSugathapalav. Thambirajah8 Sri Skanda Rajah, J., took a different view.I am in agreement with the Anew expressed by My Lord the Chief Justice.As pointed out by him, it is important to realise that section 419 of theCriminal Procedure Code is not a provision which confers jurisdiction todecide disputed cases of possession. Its object is to provide for theMagistrate being brought with the least possible delay into official touch l
l(J959) 60 N. L. B. 618.8 {1959) 62 N. L. B. 807.
* 0964) 67 N. L. B. 91.
166
TAMB1AH, J.—Mariyathasan v. Rose
with the property Beized by the Police. If the Magistrate does notconsider official custody necessary, he has no alternative but to orderdelivery back to the person in whose possession the property was at thetime of seizure (vide the dictum of H. N. G. Fernando, J. in (1959) 60N. L. R. 519).
In the instant case the Police did not proceed with an action and thelearned Magistrate had no jurisdiction to order the restoration of thepossession of the car to be given to a person other than the person fromwhose possession it was taken.
Section 413 of the Criminal Procedure Code states that when aninquiry or trial in any Criminal Court is concluded the Court may makesuch order as it thinks fit for the disposal of any document or otherproperty produced before it regarding which any offence appears to havebeen committed or which has been used for the commission of anyoffence. At the conclusion of a trial or inquiry, it is only where there isa finding by a Magistrate that an offence appears to have been committedor that the property has been used for the commission of the offencethat he has the discretion to order the disposal of it, as he thinks fit.
As my Lord the Chief Justice pointed out in Punchinona v. Hinniappuhamy (supra), under section 419 of the Criminal Procedure Codethe Magistrate has a more limited jurisdiction. He must return theproperty to the person from whose custody the possession was takenor refuse to do so, if he thinks it necessary to detain the property forthe purpose of the proceedings before the court.
Under Section 419 of the Criminal Procedure Code the discretion givento the learned Magistrate is to make such order as he thinks fit in respectof the delivery of possession of such property to the person entitled topossession, or if such person cannot be ascertained he makes an orderrespecting the custody and production of such property. As has beenpointed out in a series of cases the Magistrate’s Court cannot be convertedinto a civil court and it cannot exercise jurisdiction over the dispute oftitle to property.
Section 523 of the Indian Criminal Procedure Code is analogous tosection 419 of the Ceylon Criminal Procedure Code. A number of Indiandecisions too support the view that when no offence has been shown tohave been committed the Magistrate should return the article seized bythe Police, to the person from whom such article was seized (vide VaiapuriChetty v. Sinniah Chetty 1; Lakshichand Raj mat v. Balmukyno 2).
For these reasons I set aside the order of the learned Magistrateand order that the car be handed over to the petitioner. If the firstclaimant-respondent has a claim, she is entitled to bring an action in theappropriate Court, if so advised.
Order set aside.
1 {1931) A. 1. R. (Madras) 17,
* UQ36) A. I. R. (Bombay) 171.