S.202 CrPC | Once Magistrate Delays Issuance Of Process, Its Not Open To Direct Seizure Of Suspected Stolen Property: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court recently ruled that when a Magistrate defers issuance of process under Section 202 CrPC against the accused, it is not open for him to pass directions to seize a suspected stolen property.

The bench comprising Justice Sanjay Dhar was hearing a plea wherein the petitioner had challenged the complaint filed by the respondent against him alleging commission of offence under Section 382 read with Section 149 IPC which was stated to be pending before the Chief Judicial Magistrate, Anantnag. It was alleged in the complaint that the petitioner snatched two vehicles belonging to the respondent from his drivers.

The petitioner in his plea had also challenged CJM's order whereby the Division Officer Police Post Sangam had been directed to recover the vehicles which are the subject matter of the complaint filed against the petitioner.

Counsel for the petitioner submitted that it was not open to the Magistrate to direct seizure of the vehicles in question without first coming to a tentative conclusion as to whether offence is made out against the petitioner and in the absence of any process having been issued against the petitioner in the complaint filed by respondent it can safely be stated that the learned Magistrate had yet to make up his mind whether or not to proceed against the petitioner.

At the outset, Justice Dhar noted that the Magistrate, after taking cognizance of the offence, postponed the issuance of process against the petitioner and directed the Incharge PP Sangam to conduct an inquiry regarding the truthfulness or falsehood of the complaint in terms of Section 202 CrPC. The court also noted that the inquiry report was submitted by the police but the Magistrate did not feel satisfied with the same and directed that detailed inquiry regarding vehicles and their ownership be conducted and at the same time the also directed that the vehicles in question be seized forthwith.

In this backdrop the bench observed that Section 202 CrPC is amply clear that that a Magistrate, who is authorized to take cognizance of an offence, may, if he thinks fit, postpone the issue of process against the accused and either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Issuance of process is postponed by a Magistrate when, he on the basis of material on record, is not in a position to make up his mind as to whether any offence is made out against the accused or whether or not the allegations made in the complaint are true, the bench underscored.

Deliberating further on the matter in controversy the bench observed the instant case, the Magistrate had decided to get the matter investigated by the Incharge P/P Sangam by issuing a direction in terms of Section 202 of CrPC which in turn shows shows that he was not sure on the basis of material on record whether or not the allegations made in the complaint are true or whether any offence is made out against the petitioner-accused. In such an eventuality, it was not open to the learned Magistrate to direct the Incharge P/P to seize the vehicles which are subject matter of the complaint, the court explained

"Unless the learned Magistrate had material before him to come to a tentative conclusion that the vehicles in question were subject matter of theft, he could not have made an order for seizure of vehicles in question. The fact that the learned Magistrate has not issued process against the petitioner in the complaint filed by the respondent, shows that the learned Magistrate has yet to render a prima facie opinion about the commission of offence of theft by the petitioner. Without applying his mind to the material on record and without recording his satisfaction as regards the commission of offence by the petitioner/accused, it was not open to the learned Magistrate to direct the seizure of the vehicles" Justice Dhar expounded

Accordingly the bench set aside the order impugned for being without jurisdiction and palpably illegal.

Case Title : Riyaz Ahmad Wagay Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 150

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