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PETITIONER: ANWAR AHMAD

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT12/09/1975

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KRISHNAIYER, V.R.

CITATION:  1976 AIR  680            1976 SCR  (1) 779  1976 SCC  (1) 154

ACT:      Code of Criminal Procedure, 1898, Sections 514 and 523- Seizure  of   car  suspected   to  have  been  stolen-Police entrusting the  car with the owner and getting personal bond executed  for  its  production  in  Court-Bond,  if  can  be forfeited.

HEADNOTE:      The appellant  bought a  car from  the dealers  on  the basis of a hire-purchase agreement. He filed a report before the police  alleging that Ran Singh and others had practised a fraud  on him  and had  taken away  his car  and  had  not returned the  same. On  3-12-1969,  the  police  during  the course of investigation recovered the car and landed it over to the  appellant on  supurdnama on his executing a personal bond whereby  the appellant  undertook to produce the car in the court  whenever necessary, and in the case of failure to do so,  he bound  himself to pay a penalty of Rs. 5000/-. By the time the matter came to the Court, two years had elapsed and on  14-9-1971, the  munsiff magistrate,  Meerut,  called upon the appellant to produced the car, and as he was unable to do  so. a notice was issued under section 514 of the Code of Criminal  Procedure for  forfeiture of  the  bond.  After hearing the appellant, the magistrate ordered the forfeiture of the  bond and  directed the appellant to pay a penalty of Rs. 5000/-.  He  failed  in  his  appeal  and  his  revision petition to the High Court was also dismissed.      Allowing the appeal by special leave, ^      HELD :(1)  A perusal  of section 514 (1) of the Code of Criminal Procedure.  1898 clearly  shows  that  a  bond  for production of  the property  seized by  the police  must  be executed  before   the  Court,   although  a  bond  for  the appearance of  any person  before the  Court can be taken by the police  under section  170(2) of  the Code  of  Criminal Procedure. This section also clearly enjoins that a bond can be forfeited  only if‘  it is  executed before  a  Court  or before a  Presidency Magistrate or a Magistrate of the first class. In  the present  case, therefore.  Once the  car  was seized by  the police,  it was  the duty of the police under section 523  to report  the matter to the magistrate and get an order from him regarding the custody of the car. This was

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not done. Even the bond which was executed by the appellant, was not  before the  Court or  the magistrate but before the police officer,  and in  these circumstances, therefore, the aforesaid bond  was not  one as  contemplated by section 514 and, therefore.  could not be forfeited. Rameshwar Bhartia v The State  of Assam, A.I.R. 1952 ’S.C. 405, relied on. [781- FH. 782-Al      (ii) Though the provisions of Regulation 165(ii) of the Government of   Uttar  Pradesh Police  Regulations read with section 423 of the Code undoubtedly authorizes the police to seize the  property and  to make  a summary  order.  Of  the custody of’  the property,  neither section 523 nor rule 165 (ii) authorize   the police officer to take a bond from  the person to whom the property is entrusted. [781-D-E]      Observation: Even  in the  new Criminal Procedure Code, there is  no express  provision which empowers the police to get a  bond from  the person  to whom the property seized is entrusted. This  may lead  to  practical  difficulties,  for instance in  cases where  a bulky property is seized and the magistrate is  living at  a  great  distance,  it  would  be difficult for  a police  officer to report to the magistrate with the  property. The  Government will  be well-advised to make suitable amendments in the code to fill up this serious lacuna by  giving power to the police for taking the bond in such circumstances. 1782-E-Fl

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 128  of 1975. 780      Appeal by  Special Leave  from the  Judgment and  order dated the   22nd  November, 1974 of the Allahabad High Court in Criminal Revision No. 2475 of 1971.      K. C.  Agarwala  and  M.  M.  L.  Srivastava,  for  the appellant.      O. P. Rana, for the respondent.      The Judgment of the Court was delivered by B      FAZAL ALI  J. This  appeal by  special leave involves a short point of law relating to the legal enforceability of a personal bond  executed by  the appellant  before the police for the  production of  the car  belonging to him, which was alleged to have been stolen. The facts leading to the appeal fall within a very narrow compass.      The appellant appears to have bought a car No. USD 5317 from the dealers ON] the basis of a hire-purchase agreement. He filed  a report before the police alleging that Ran Singh and others  had practised  a fraud on him and had taken away his car  and had  not returned  the same.  On 3-12-1969, the police during  the course of investigation recovered the car and handed  it over  to the  appellant on  supardnama on his executing a personal bond whereby the appellant undertook to produce the  car in the court whenever necessary, and in the case of  failure to do so, he bound himself to pay a penalty of Rs.  5,000/-. By  the time  the matter came to the Court, two  years   had  elapsed  and  on  14-9-1971,  the  munsiff magistrate, Meerut, called upon the appellant to produce the car, and  as he  was unable  to do  so, a  notice was issued under section  514 of  the Code  of Criminal  Procedure  for forfeiture of  the bond.  After hearing  the appellant,  the magistrate   ordered the forfeiture of the bond and directed the appellant  to pay  penalty of Rs. 5,000/-. The appellant went up  in appeal  to the learned Session Judge against the

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magistrate’s  order.  But  the  appeal  was  dismissed.  The appellant met  the same fate in revision which was preferred to the High Court. Hence, this appeal before us.      The short  point  taken  by  learned  counsel  for  the appellant is  that even accepting the prosecution case as it stands, the  bond  is  not  legally  enforceable  under  the Criminal Procedure  code, because it was not executed before a court,  but it was executed before a police officer. It is not  disputed  by  counsel  for  the  parties  that  as  the occurrence took  place long  before the  Criminal  Procedure Code, 1973,  the present  case will  be covered  by the  old Criminal Procedure  Code, 1898.  The Criminal Procedure Code contains separate provisions for the custody of property (1) during the course of investigation, (2) during the course of enquiry and trial, and (3) after the accused is convicted or acquitted. In  the instant  case, we are concerned, however, with the  case while it was under investigation. Section 523 of the Code runs thus:-           "The seizure  by. any  police officer  of property      taken under section 51, or alleged or suspected to have      been stolen,  or found under circumstances which create      suspicion of  the commission  of any  offence, shall be      forthwith reported to a Magistrate, who shall make such      order as he thinks fit res- 781      pecting the  disposal of  such property or the delivery      of  such   property  to  the  person  entitled  to  the      possession there  of, or,  if  such  person  cannot  be      ascertained, respecting  the custody  and production of      such property." , It would  thus appear  from a perusal of this provision that the moment  a police  officer seizes a property suspected to have been  stolen or  which is  the  subject  matter  of  an offence" he  has to  report the  matter  to  the  magistrate concerned and  it is  for the magistrate to pass such orders as he thinks fit regarding the disposal of the property. The learned counsel  or the  respondent, Mr.  O. P.  Rana,  has, however, drawn  our  attention  to  Regulation  165  of  the Government of  Uttar Pradesh  Police Regulations in order to contend that this provision concerned clear authority on the police officer  to take  possession of   the property seized and to  give it  on superdnama  to any  respectable  person. 165(ii) runs thus:           "(ii) Bulky  property, other  than livestock taken      possession of  under section  25 of the Police Act V of      1861, attached,  distrained or seized under section 88,      387 or  523 of  the Code  of Criminal  Procedure  shall      ordinarily, pending  the orders  of the  Magistrate, be      left at  the place  where it was found in the charge of      some land  holder or  other respect able person willing      to undertake  responsibility for  its  custody  and  to      produce it when required by the court." It is  true  that  this  provision  read  with  section  423 undoubtedly authorizes  the police to seize the property and to make  a summary order of the custody of the property, but neither section  523 nor  rule 165(ii)  authorize the police officer to  take a bond from the person to whom the property is entrusted.  The policy  of the law appears to be that the execution of  the  bond  involves  a  civil  liability  and, therefore, it is ill the fitness of things that it should be executed before a court. Section 514 of the Code runs thus:-           "514(1) Whenever  it is proved to the satisfaction      of the  Court by  which a bond under this Code has been      taken, or  of the  Court of  a Presidency Magistrate or      Magistrate of the first class,".

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A perusal  of this section clearly shows that a bond for the production of  the property  seized by  the police  must  be executed  before   the  Court,   although  a  bond  for  the appearance of  any person  before the  Court can be taken by the police  under section  170(2) of  the Code of Criminal ‘ Procedure. This section also clearly enjoins that a bond can be forfeited only if it is executed before a Court or before a Presidency  Magistrate or a Magistrate of the first class. Section 6  of the  Code of Criminal Procedure classifies the classes of  courts which  includes magistrate  of the  first class also. In the present case, therefore, once the car was seized by  the police,  it was  the duty of the police under section 523  to report  the matter to the magistrate and get an order  from him  regarding the  custody of  the car. This does not  appear to  have been done. Even the bond which was executed by the appellant, was not before the 782 court or  the magistrate  but before the police officer, and in these  circumstances, therefore,  the aforesaid  bond was not one as contemplated by section 514 and, therefore, could not be  forfeited. This  Court in . Rameshwar Bhartia v. The State of Assam(1) went into this very question and observed:           "The other  point taken on behalf of the appellant      is‘ a   more  substantial one.  The security  bond  was      taken from  him not by the court but by the Procurement      Inspector. It is true that it contained the undertaking      that the  seized paddy  would be  produced  before  the      court,  but   still  it  was  a  promise  made  to  the      particular official  and not  to the  court.  The  High      Court  was  in  error  in  thinking  that  section  514      Criminal Procedure  Code applied. Action could be taken      only when  the bond  is taken  by the  court under  the      provisions of the Code ..." The facts of the present case squarely fall within the ratio laid down in that case. It follows, therefore, that unless a personal bond  is executed by a person for the production of the property, before a court it shall not be valid in law. In view  of these circumstances, therefore, we are satisfied that the  bond executed  by the  appellant was  not  legally enforceable and  the older  of the  courts belong forfeiting the bond must, therefore, be quashed.      Before closing  this judgment, we would like to observe that even r. in the new Criminal Procedure Code, there is no express provision  which empowers  the police  to get a bond from the  person to  whom the  property seized is entrusted. This may  lead to  practical difficulties  for  instance  in cases where  a bulky. property, like an elephant or a car is seized and  the magistrate is living at a great distance, it would ,  be difficult  for a police officer to report to the magistrate with  the property.  In these  circumstances,  we feel that  the  Government  will  be  well-advised  to  make suitable amendments  in the  Code of  Criminal Procedure  to fill up  this serious  lacuna by giving pow. r to the police for taking  the bond  in such  circumstances. We  would also like to  make it  clear that  since the    bond  is  legally invalid. it  is not  enforceable under section 514, Criminal Procedure Code,  but we  refrain from making any observation regarding any  other liability  of the  appellant under  the law. For  the reasons given above, we allow this appeal, set aside the  orders of  the courts  below  and  discharge  the appellant from the bond V.M.K.                                       Appeal allowed.      (1)A.I.R. 1952 S.C. 405. L 925 Sup 1175-2500-4-3-76. GIPF 783

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