025-NLR-NLR-V-67-G.-V.-SUGATHAPALA-Appellant-and-J.-K.-THAMBIRAJAH-Respondent.pdf
Present: Sri Skanda Rajah, J.
V. SUGATHAPALA, Appellant, and J. K. THAMBIRAJAH,
Respondent
8. C. 89/1964—M. C. Colombo, 35434/C
Property found by police under circumstanced which create suspicion of the commissionof an offence—Mode of disposal thereof by Magistrate—Power of Magistrateto decide disputed claims—Criminal Procedure Code, as. 413, 419 (/).
Section 419 (1) of the Criminal Procedure Code is as follows :—
“ The seizure by any police officer of property taken under section 29 oralleged or suspected to have been stolen or found under circumstanceswhich create suspicion of the commission of any offence shall be forthwithreported to a Magistrate who shall make such order as he thinks fit respectingthe delivery of such property to the person entitled to tho possessionthereof, or if such person cannot be ascertained respecting the custodyand production of such property.
Held, that it is open to a Magistrate, when be acts under section 419 (1),to direct the property found in the possession of one person to be delivered toanother person who is entitled to possess it. Section 419 has conferred jurisdic-tion on the Magistrate to decide who is entitled to the possession of suchproperty. In exercising that power, the Magistrate is not deciding a civildispute, but only the right of possession in respect of the property. In theabsence of anything to show the title to the property, it should be ordered tobe delivered to the person in whose possession it was when it was seized bythe polioe.
William v. Silva (22 N. L. R. 403) followed.
Punchinona v. Hinnioppuhamy (60 N. L. R. 618) and Piyadasa v. PunchiBanda (62 N. L. R. 307) not followed.
.A.PPEAL from an order of the Magistrate’s Court, Colombo.
No appearance for the appellant or respondent.
V. S. A. PttUenayegum, Crown Counsel, with D. S. Wijesinghe, CrownCounsel, as amicus curiae.
April 6, 1964. Sri Skanda Rajah, J.
The facts relevant to this appeal may be summarised as follows :
The appellant Sugathapala complained to the police that his motor car1 Sri 4307 had been stolen from his possession on 31. 3. 1963. On 3.5.1963the police seized the car which was in the possession of the respondent
J.K. Thambirajah, who claimed to have purchased it in April, 1963,from two persons alleged to bear the names A. J. R. Fernando and K. A.Martin. The police have not been able to trace them. At the timeof the seizure the car carried false number plates—1 Sri 1693—but thechassis No. FAA 21’488286 and engine No. APJML 46006 were thoseof car 1 Sri 4307. Also, the genuine number Plates 1 Sri 4307 werestill on the car, but very cleverly concealed under the false numberplates. The police produced the car before the Magistrate with theirreport and moved for an order for its disposal.
In short, the Magistrate was called upon to make an order underSection 419 of the Criminal Procedure Code, the relevant portion ofwhich is reproduced below :—
Section 419 (1) : The seizure by any police officer of property takenunder section 29 or alleged or suspected to have been stolen or foundunder circumstances which create suspicion of the commission of anyoffence shall be forthwith reported to a Magistrate who shall makesuch order as he thinks fit respecting the delivery of such propertyto the person entitled to the possession thereof, or if such personcannot be ascertained respecting the custody and production ofsuch property.
This provision and the corresponding provision of the Indian Codeof Criminal Procedure, Section 523, are in identical terms.
After hearing Counsel the Magistrate, following Punchinona v. Hinni-appuhamy1, held that he had “ no alternative but toorder the propertyto be delivered back to the person from whose possession it was seized ”,viz., Thambirajah. It is from that order that this appeal has been taken.
When this appeal came up before me on 20.3.64, there was no appearancefor either party. As my view of section 419 differed from that takenin recent decisions of this Court, I informed Mr. D. S. Wijesinghe,Crown Counsel, who was in Court, that I would very much appreciate
1 (1959) 60 N. L. R. 518.
assistance. In response, Mr. Pullenayagam, Crown Counsel, appearedwith him on 24.3.64 as amicus curiae. I am indebted to him for hisassistance. Three of the cases cited by him, viz., William v. Silva1,Lakshmichand Rajmal v. Oopiksan Balmukund2, Vaiyapuri Chetiy v.Sinniah Chetty *, support my view.
In Martin Silva v. Kanapathipillai *, the subject matter of the orderof the Magistrate was some money. Abrahams, C.J., thought that theMagistrate had acted under Section 413 of the Criminal ProcedureCode and held that that section had no application. He did not expressany view regarding section 419, because his attention does not appearto have been drawn to it. He, however, went on to express the viewthat a criminal court should not be employed as a tribunal to investigaterival claims to property.
In Williamv. Silva5, property seized by the police from the pocket of theaccused was directed by the Magistrate to be returned to the complainantafter he disbelieved the charge and discharged the accused. The accusedthen moved that the property be returned to him. That was refused.Thereupon the accused appealed to this Court. His appeal was dismissedfor more than one reason. In the course of the judgment, Schneider,
A. J., said : “, the Magistrate did not act upon the provision
of section 413, but upon a well recognized principle that where propertyis brought into Court as having been in the possession of a particularperson upon an allegation that an offence has been committed, it mayorder the restoration of the property to the person in whose possessionit had been found (Katha v. Meera, 3 N. 1». R. 90 ; Thambipidle v. Ramos -toamy, 4 Balasingham Reports 89 ; Doloswala v. Eknelligodde, 7 S. C. D.37).”
I have already pointed out that the Magistrate did not return the moneyto the accused in whose possession it was when seized by the police.In the next sentence the learned Judge continued, “ In making such,an order the Magistrate may also have acted under section 419 of the CriminalProcedure Code.”
Schneider, A.J., was therefore, of the view that when the Magistrateacts under section 419 it is open to him, “ if he thinks fit ”, to direct theproperty found in the possession of one person to be delivered to anotherperson entitled to the possession thereof.
In Costa v. Peiris •, de Silva, A.J., said : " When the property seizedhas been removed from the possession of a person a Court has a largerdiscretion under section 413 as to the order it can make than it has undersection 419. Under the latter section it has either to return the propertyto the same person or refuse to do so if it thinks necessary to detain theproperty for the purposes of proceedings before it. The former powerwas referred to in WiUiam v. Silva, 22 N. L. R. 403, and is in accordance
(1921) 22 N. L. R 403.
A. 1. R. 1936 Bombay 171
A. I. R. 1931 Madras 17.
(1939) 14 G. L. W. 41.
» (1921) 22 N. L. R. 403.
35 N. L. R. 325 ; 13 O. L. Rec. 73.
with the decisions in the cases referred to therein. The possessionof property cannot be lightly interfered with, and I do not think it haspower under the section to order property seized and removed from thepossession of one person to be given to another person. If a courtunder section 413 finds that an offence has been committed in respectof property produced before it or that it has been used for the commissionof an offence, then it may make order interfering with the possessionof the person from whom the property was taken. If it does not arriveat one of these findings, then the * person entitled to possession ’ is theperson from whom it was taken. Any person disputing his rights mustdo so in civil proceedings.”—35 N. L. R. at 328.
If I may say so with great respect to one who was later elevated to theJudicial Committee of the Privy Council, it is difficult to reconcile thiswith what the learned Judge said later on at the same page : “ Undersection 419 a Court has to exercise a judicial discretion. It should hearboth the complainant and the accused before doing so.” If the Magis-trate acting under section 419 is bound to hand over the property seizedto the person from whom it was taken (unless he thinks it necessary todetain it for the purposes of the proceedings before him), as statedearlier, there would be no useful purpose in hearing the complainant,though he may have “ the best right to possession ”, to borrow the wordsfrom Beaumont, C.J., (v. infra).
I would observe that the “ judicial discretion ” vested in the Magistrateby the words “as he thinks fit ” is not such a limited one but includesthe right to hand over the property even to the complainant if thelatter establishes that he is entitled to the possession thereof. I wouldalso point out that it is only when “ the person entitled to the possession ”of the property in question “ cannot be ascertained ” that the Magis-trate can make order “ respecting the custody and production ” ‘for thepurpose of the proceedings before him ’, in the words of de Silva, A. J.,or ‘ official ’ custody, in the words of H. N. G. Fernando, J., 60 N. L. R.at 519 (infra). It is for the purpose of ascertaining the person entitledto the possession of the property that the complainant is also heard.
If by the words, “ the former power was referred to in William v. Silva
” in the above passage de Silva, A.J. referred to the power
under section 413, I would respectfully point out lhat Schneider, A.J.,eaid that the order of the Magistrate was not made under section 413.If, on the other hand, he referred to the earlier words, “ it has ….to return the property to the same person . . . .” I would alsorespectfully point out that in William v. Silva the property was returnednot “ to the same person ” b t to the complainant.
p In Punchinona v. Hinniappuhamy H. N. G. Fernando, J., quotedthe earlier of the above passages from the judgment of de Silva, A.J.,in Costa v. Peiris (supra) and added “ section 419 is not a provisionwhich confers jurisdiction to decide disputed claims to possession.”
1 (1959) 60 NJL.R. 518.
The same learned. Judge took the same view in Piyadasa v. PunchiBanda1, decided by him on the same day as the 60 N- L. R. case and inthe earlier case of Jayasuriya v. Wamakidasuriya2, where he referredto Martin Silva v. Kanapathipillai (supra).
In the 61 N. L. R. case the original “ intimation to the Court ” by thepolice who produced the boat and asked for an order regarding itspossession was that “ there was a dispute between the parties claimingownership of the boat.” The police did not report that the boat was" alleged or suspected to have been stolen . . .. ” In short, the seizureof the boat was not under the circumstances referred to in section 419.
No one will dispute the proposition that a criminal court cannotassume civil jurisdiction. Recently I had occasion to remark thatparties cannot, even by agreement, confer civil jurisdiction on a criminalcourt: Fernando v. Wijesekera 3.
But the legislature has by section 419 conferred jurisdiction on the
Magistrate to “ order as he thinks fitthe delivery of such
property (i.e., alleged or suspected to have been stolen . . . .)
to the person entitled to the possession thereofIn the exercise
of this jurisdiction he is given the power to decide as to who is entitledto the possession of such property. In order to decide it, he must firstmake investigation. In exercising that power given him by section419, he is not deciding a civil dispute, but only the right of possessionin respect of property referred to therein.
In Lakshmichand Bajmal v. Gopikisan Balmukund (supra) Beaumont,C.J., who too was later elevated to membership of the JudicialCommittee of the Privy Council, with whom Macklin, J., agreed, said:” Under section 523 (our section 419) what the Magistrate has toconsider is, who is entitled to the possession of property which hasbeen seized by the police. Where it is proved that the person fromwhose possession the property was seized came by it dishonestly, theMagistrate may have to consider the questions of title in order todetermine the best right to possession.”
In Vaiyapuri Ghetty v. Sinniah Ghetty (supra), a decision under section517 (our section 413) at page 18 : “ It may therefore seem that the simplerule should be that if no crime is made out the Magistrate should returnthe property to the person from whom it was taken. But the rule is justtoo simple. Suppose, to make a common example, the accused personwhom the Magistrate acquits, has pleaded that the property was foistedupon him (as in William v. Silva (supra)). There would then be no senseIn the Magistrate telling him to keep it. Other instances can no doubtbe imagined, but, except in these special cases, the Magistrate shouldreturn the property to the person from whom it was taken. The samerule is laid down in Srinivasamurti v. Narasinhalu Naidu, 50 Madras
* (1958) 61 N.L.R. 189.
1 {1957) 02 N. L. R. 307.
» (1961) 66 N. L. R. 23.
916, in almost identical terms on page 919. It should be returned to theperson from whom it was seized, unless there are special circumstanceswhich would render such a course unjustifiable.”
The phrase “ as he thinks fit ” in section 419 gives the Magistratediscretion. He should exercise such discretion judicially. In the absenceof anything to show the title to the property, it should be ordered to bedelivered to the person in whose possession it was when seized by thepolice. This Court will not interfere with the judicial discretion exer-cised by the Magistrate if it appears that he had applied his mind asto who was entitled to possession and come to a conclusion on thematerials placed before him.
Are there such special circumstances in this case and/or did Thambi-rajah come by this car dishonestly ?
Recent possession of the stolen car would raise the presumption—rebuttable, no doubt—that Thambirajah was either the thief or that hereceived it knowing or having reason to believe that it was stolenproperty—that he came by the car dishonestly. This is further evidencedby the fact that the true number plates were concealed under false ones.
Sugathapala, the registered owner of the car, was entitled to itspossession. Possession of a car can be transferred only in a special way.Notice of transfer signed by the vendor and vendee should be forwardedto the Registrar of Motor Vehicles. If, as was submitted by Thambi-rajah’s Counsel to the Magistrate, Sugathapala *s agents had sold thecar to him, he would have insisted on Sugathapala himself signing thetransfer form.
The above two questions should, therefore, be answered in theaffirmative.
For these reasons, I am of opinion that Sugathapala had " the bestright to possession ”. Therefore, I set aside the order made by the learnedMagistrate and direct him to have the car delivered to Sugathapala.
Order set aside.