Can a Magistrate invoke Sec.451-457 CrPC during investigation? NO says HC,

 

 

Meghalaya High Court has held that a Magistrate cannot exercise his/her powers under Sections 451/457, Cr.P.C.prior to the commencement of the prosecution.

The Single-Judge Bench of Justice W. Diengdoh observed that when trial or inquiry has not been set in motion, Magistrate cannot intervene issuing order for custody or disposal of property.

Arguements

The Sr. Counsel appearing for the petitioner who has submitted that the main grievance of the petitioner is the manner in which the learned Magistrate has assumed jurisdiction in releasing the said trucks which he could not have done so given the fact that there is an express provision for release of the goods (including the trucks herein) under Section 110 A of the Customs Act, where the proper officer who has caused 3 seizure of the same under Section 110 of the said Act is empowered to release the seized goods.

He has further submitted that the Customs Act, 1962 is a special Act and as submitted, there are specific provisions as regard arrest and seizure, particularly Section 104 which empowers the competent Custom Official to arrest any person suspected to have committed certain offences under the Customs Act. Sections 110 and 110A deals with the power of seizure and release of the seized goods and as such, exercise of powers under the code of criminal procedure by the learned Magistrate is without jurisdiction for which the original impugned order cannot be sustained.

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He took exception to the fact the that the persons arrested by the Custom Officer was produced before the learned Magistrate for the purpose of remand to judicial custody is not an indication of submission to the jurisdiction of the said Magistrate, but only in compliance with the provisions of sub-Section 2 of Section 104 of the Customs Act, and more particularly when prima facie the offence is non-bailable, then resorting to sub-Section 6 of Section 104, the arrested persons were duly produced before the said Magistrate.

He vehemently added that when the said arrested persons were produced before the learned Magistrate for remand as provided under Section 104 of the Customs Act, the concerned Custom Officer has also produced the inventory/seizure list, this does not tantamount to submission before the jurisdiction of the said Magistrate to enable Section 451/457 Cr.P.C. to be resorted to on application, since any seizure under Section 110 in a confiscation proceedings requires that the inventory of the seized goods has to be prepared before the Magistrate for the limited purpose. 

In the main contention, he submitted to the Court that the case is still at the stage of show cause and for prosecution to be launched, under Section 137 of the said Customs Act, the sanction of the Principal Commissioner has to be obtained which will be followed by filing of a regular criminal complaint whereupon, the learned Judicial Magistrate wil then assume jurisdiction. Such stage has not yet reached at the time of passing of the impugned order by the learned Magistrate and as such, it is reiterated that powers under Section 451/457 Cr.P.C. could not have been exercised by the learned Judicial Magistrate.

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On the other hand, learned counsel for the respondents in his reply has candidly admitted that under the various provisions of the Customs Act, 1962, there is no provision for production of materials seized by the Custom Officials before the Magistrate to seek permission for custody of the same. He presented his case and urged the Court that his client had no option, but to approach the learned Magistrate with an application under Section 451/457 Cr.P.C. for interim release of the trucks which was allowed.

However, at the same time he has fairly submitted that in the event that this Court finds that the learned Magistrate has no jurisdiction to pass the impugned order dated 20.07.2021, the respondents may be allowed to approach the competent authority under Section 110 A of the Customs Act and mentioned that the peculiar circumstances of this matter and taking into consideration the fact that the said trucks were in custody for more than nine months contrary to the direction of the Hon’ble Supreme Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat'

High Court Observation

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The question for Court's consideration was whether the learned Magistrate have correctly assumed proper jurisdiction while passing the original impugned order under Section 451/457 Cr.P.C.?

At the outset, the Court looked into the provision of Section 451 Cr.P.C empowers a Criminal Court to order for custody and disposal of property pending trial in certain cases and when such property was produced before the said Court, an appropriate order may be 6 passed for the custody of such property.

Citing, one of its ruling, the Court opined that for the applicability of Section 451 of the Cr.P.C, an inquiry or trial has essentially to be in progress.

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The Court then stressed on the Section 110 of the Customs Act, 1962 which speaks of seizure of goods, documents and things and Section 110-A which provides for release of goods, documents and things seized pending adjudication.

In view of the above, the Court stated that in a proceeding under the Customs Act, it is but natural to expect that the provisions of the said Act would be applicable to enable the concerned party to resort to for specific directions or relief as the case may be.
"When in Section 110-A it has been specifically laid down that the proper officer is empowered to release the seized goods to the owner on taking a bond from him, then there is no necessity to approach the Magistrate to employ Section 451 of the Cr.P.C. for the purpose of release of such goods. It may be mentioned that the Customs Act, 1962 is a special Act while the Code of Criminal Procedure deals with the general law. It is also well settled that the provisions of the Special Act will override the provisions of the general law as in the case in hand. The principles of the latin maxim of “generalia specialibus non derogant”, i.e., general law yields to special law should they operate in the same field on same subject will be applicable here."

 In the present case, the Court ruled that it is apparent that at the time of passing of the original impugned order, the matter was still under investigation by the Customs officials and the stage of prosecution has not yet commence as evident from the fact that the relevant sanction for prosecution by the Principal Commissioner of Customs or Commissioner of Customs have not yet been issued to enable the Court to take cognizance of the offence and therefore, the learned Magistrate in the absence of a trial or inquiry could not have passed the said impugned order under Section 451/457 Cr.P.C. 

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