NOTES ON “DISPOSAL OF PROPERTY” BY CRIMINAL COURT Ma. KARUNANITHI BSc., M.L.,
SENION PANEL COUNSEL, UNION OF INDIA
FORMER SPECIAL PUBLIC PROSECUTOR, Q BRANCH CID
HIGHCOURT – MADURAI BENCH
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I. INTRODUCTION :-
Chapter XXXIV Crl.P.C. 1973 deals with the disposal of property by the criminal courts. Section 451 to 459 Crl.P.C 1973 are the relevant provisions made under chapter XXXIV Crl.P.C. Beside these provisions, the Criminal Rules of Practice and Circular Orders provides Rules 220 to 234 are also governing the field. It has divided into two type one is under investigation stage i.e. pre-trial stage and another is post-trial stage. Since, the disposal of property is an important task, the author intends to discuss the topic more particularly “disposal of property by criminal courts with reference to special Acts such as NDPS, prevention of Food Adulteration Act, Gaming Act, Drugs and Cosmetics Act,1940, Essential Commodities Act, Prevention Of Corruption Act, etc.,
II. DISCUSSION :-
Disposal of property does not only mean handing over or returning of case properties to anyone like defacto - complainant but also includes destruction, confiscation and selling of the case properties.
The following incidental questions will arise, when claim is made by two parties.
i) Whether ownership of properties has to be a decided by criminal court?
No, ownership of the case properties need not be decided, even roving enquiry is not necessary.
ii) Whether criminal court has got right to decide the ownership of the properties?
No, criminal court cannot decide ownership of the case properties.
iii) Whether statements of witnesses recorded under section 161 (3) Cr.P.C and confession of an accused can be considered while disposing the application for disposal of property by a criminal court.
Yes, it can be considered
iv) The language contained in section 451 and 452 are very much important to say whether ownership of the property has to be decided before passing an order of disposal of property? If not what has to be proved? And what can be the valid order regarding disposal of property?
2016 (2) TNLR Crl 522 Madras High Court – Ponnammal Vs State.
Sec 451 Cr.P.C – Robbery of ornaments – accused arrested and ornaments recovered – held that confessional statement and statement under section 161 Cr.P.C if read together makes clear that ornaments were that of complainant – Hence, interim custody was granted.
2011 Crl. L.J. (NOC) 197 (BOM.) - Nattuhusingh Sitaramji Bundel Vs State of Maharastra and another
Criminal P.C.(2 of 1974), S. 452 – Stolen property – custody of – order passed under S.452 does not conclude rights or title to the property – criminal court under S.452 does not decide intricate question of ownership of property which is domain of civil court (Para 11).
Sec 451 order for custody and disposal of property pending trial in certain cases.
Sec 452 order for disposal of property at conclusion of trial
Sec 457 procedure by police upon seizure of property
Sec 459 power to sell perishable property.
The above four provisions are vital in so far as disposal of properties are concerned.
Before passing the order for disposal of properties the criminal courts has to consider who is entitled to get interim custody of such property and the title of the property ought not to be decided by the criminal courts
1. Claiming to be entitled to the possession thereof ………..has been coined in Section 452 Crl.P.C.,1973 and in section 453 Cr.P.C… to the person entitled to the possession thereof has been used.
Hence, there can be no doubt that the criminal courts dealing with disposal of property cannot decide the ownership of property but, the entitlement of property alone is the criteria before the criminal court at the time of disposal of property is concerned.
1977 Crl J 1850 – B.S. Tookappa Vs State of Karnataka
The Magistrate while passing an order under section 452 Cr.P.C is not to decide complicated questions of law.
1996 Crl. J 1191 – Beni dam Vs Lakshi chand
The Magistrate has to find out the best person entitled to possession without deciding about the ownership of the property.
1997 Crl.J 575 – Rajalingam Vs Vengala Venkatarama Reddy
Serious claim made by both the party regarding ownership – the court directed both the parties to establish their claim before the civil court.
Confiscation without notice to the party is illegal.
AIR 1969 SC 401 – State bank of India Vs Rajendra Kumar Singh and others
Confiscation was ordered without notice-challenged
Page 4 In our opinion, there is no warrant or justification for the argument advanced on behalf of the respondent. It is true that the statue does not expressly require notice to be issued or hearing to be given to the parties adversely affected… that the parties adversely affected should be heard before the court makes an order for the return of seized property.
Forest case properties:
Section 52 of the Indian Forest Act, 1927 gives power to forest officer or police officer to seize the properties when forest offence has been committed, after the trial is concluded the property of the government be taken charge of forest officer and in any other case the court may dispose it as per section 56 of the Act.
2003 Cr.l.J.2679.
When confiscation is pending before forest officer, Magistrate can not release the vehicle.
1993 Crl J 219 - Karnam Laxmipathi Padmini Vs State of Orisa
Orissa Forest Act – Forest produce seized by forest officer and prosecution launched by them – Timber in question was seized by the Range Officer, Bhubaneswar u/s 56 of the Act relying the order made in civil appeal No.1216/1979 in State of AP Vs Smt. Haji Begum it was held that applications for disposal of property is not maintainable before Judicial Magistrate.
2005 Crl J NOC 65 – Aswinikumar Patra Vs State
Illegal transportation of manganese – vehicle seized- Judicial Magistrate has no power when it can be confiscated under the forest act.
Customs case
Section 110 (1) of the customs act gives power to proper officer of customs to seize the goods which are liable to be confiscated
Sec 110(1) of customs act is given below
Sec 110. seizure of goods, documents and things, - (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods :
Section 110(A) of customs Act gives power to the adjudicating authority to provisionally release the goods, documents and things pending adjudication, Sec 111 of customs Act gives power to confiscate the properties.
Section 110-A. Provisional release of goods, documents and things seized pending adjudication – Any goods, documents or things seized under section 110, may, pending the order of the [adjudicating authority], be released to the owner on taking a bond from him in the proper form with such security and conditions as the [adjudicating authority] may require.
Section 2(1) of the customs Act defines ‘adjudicating authority’
Sec 2 (1) Definitions – In this Act, unless the context otherwise requires –
“Adjudicating authority” means any authority competent to pass any order or decision under this Act, but does not include the board, [Commissioner (Appeals)] or Appellate Tribunal;
Hence, it is crystal clear that criminal courts are not the adjudicating authority as defined under the customs Act and so the properties seized by the proper officer of the custom cannot be disposed by the criminal court.
2003 Crl. L. J. 2579 - Union of India, Vs Chungnunga and another
Customs Act (52 of 1962) S. 126 – Seizure of smuggled goods and Arms by custom authority – Handing over of arms to criminal court for trial in terms of arms act for illegal possession of arms – subsequent prayer of customs authority seeking custody of seized articles was ready to undertake to produce seized articles as and when required by court – accused not claiming legal ownership of property seized – In circumstances, order declining to release seized article on ground that cognizance has been taken by criminal court and court can dispose same on strength of section 451 criminal PC and that release of articles will affect trial adversely – Not proper.
1977 Crl. J. 1551 - The Assistant Collector of Customs, Vs Misrimal and another
Customs Act (1962) SS 111, 112, 126 and 135 – Criminal P.G.(1898) Ss. 517 and 5(2) – Goods confiscated under S.111 – Accused prosecuted under S. 135 before criminal court and acquitted – Criminal Court if can order return of goods to accused. 1975 Cri LJ 1617 (Mad), Overruled.
AIR 1970 GUJARAT 223 (V 57 C 37) - Superintendent Customs and Central Excise Vs Raichand Lakhamsing Shah
Customs Act (1962), S 110 – Vehicle carrying smuggled goods seized by police and conveyed to customs house- customs officer seizing same under Section 110 – Seizure by police not under S.550 criminal P.C. – Magistrate cannot order customs officer to release vehicle to the owner.
1977 Crl. L.J.1423 - Jagdish Singh Vs State of Punjab
Criminal P.C. (1898) S.516-A – Disposal of property seized during investigation of a criminal case representing price of smuggled gold sold by accused –Liable to confiscation under customs act – police not prosecuting accused – application by customs authorities to hand over money seized – held, sustainable.
1993 Crl. LJ 956 - The Superintendent of Customs and Central Excise Vs R.Sundar
(A)Criminal P.C.(1974) Ss. 457, 51, 102 – property seized by police under Ss. 51 and 102 and not reported to Magistrate – S.457 is not attracted –Obligation to report to Magistrate omitted in S.457 which was created under S.523 of old code.
1977 Crl. LJ 1551 DB – Madras HC
The Asst. Collector of Customs Vs Madras HC
The Assistant Collector of Customs Vs Misriammal another
1) 1993 CrlJ 956 Madras the Para 33
The Superintendent of customs and central excise Vs R. Sundar
Criminal court has no power to return the properties-
2) 2003 Crl.J 2579 Para 12
Union of India Vs Chungnunya and another
ARMS ACT CASES:-
Arms Act – Sec 25(1-B) of Arms Act r/w Sec 6(a) PP rules 1950 – confiscation was ordered – petition to return them to customs was rejected –revisions allowed.
DIFFERENCE BETWEEN INQUIRY AND TRIAL
i) 2014 (1) LW Crl 440 Para 25 (Constitution Bench Judgment)
Distinction between inquiry and trial enquiry has been defined u/s 2(g) Crl.P.C. inquiry means every inquiry, other than a trial, conducted under this code by a Magistrate in court.
ii) AIR 2004 SC 1890 - Moly & another Vs State of Karnataka
Trial is distinct from an enquiry and must necessarily succeed it. The term trial has not been defined under code.
WHETHER PERMISSION CAN BE GRANTED TO SELL MOTORVEHICLE
2018 I LW Crl 96 Madras Para 8 - Chinnathambi Vs State
The case property is an automobile consisting of mechanical and rubber parts which by their nature subject to natural delay. Sec 451 Crl.PC - discretionary powers on the court to grant permission to sell - Revision allowed.
2018-1-LW. (Crl) 96 - Chinnathambi Vs The state rep by the Inspector of Police, Taluk Police station, Dindigul District.
Revision is filed under sect 397 r/w 401 of Cr.P.C., praying to call for the records in connection with the order passed by the learned Judicial Magistrate No.1, Dindigul in Cr.M.P.No.2823 of 2016 in PRC.No. 7 of 2017, dated 02.11.2016 and set aside the same and consequently, permit the petitioner to sell his vehicle “Bolero Jeep” bearing Registration TN 57 AL 6690 in connection with the case in Crime No.467 of 2015 on the file of the respondent.
Prevention of Corruption Act – Tamil Nadu Prohibition Act
State of Karnataka Vs CS Andani 2006 Crl LJ 1575
Valuable property from the accused was seized in connection with an offence under the PC Act 1988 – disproportionate to known source of income – property was handed over to accused – set aside by high court.
Pending confiscation proceedings –
2005 (1) MLJ (CRL)93 = 2005 (1) CTC 746 = CDJ 2004 MHC 1892 = 2005 (1)LW (CRL) 93 - G. Chandramohan Vs. Inspector of Police, PEW, Kumbakonam
Return of vehicle in criminal case – criminal court has got right to grant interim custody though confiscation proceedings are pending – petition allowed.
2007 Crl LJ NOC 248 – The Vehicle in question used for transportation of contraband was seized – registered owner of the vehicle sought for interim custody – confiscation proceedings not yet commenced – custody can be granted because no useful purpose would be served by keeping the vehicle before the police station
Damage to property – in custody of police – what are courses to be adopted by the criminal court
AIR 1977 SUPREME COURT 1749 = 1977 CRL J. 1141 - Basava Kom Dyamogouda Patil Vs State of Mysore and another
(A)Criminal P.C. (1898). S. 517 – property lost or destroyed during pendency of trial – court has power to order payment of value of property 1971 Crl LJ 566 (Mys), Reversed.
1977 SCC (4) 358 = 1977 Crl.J 1141 BK Patila Vs State –
When the property was stolen or damaged during the police custody – for want of due care – judicial magistrate can order payment of price of the property to the owner.
Motor Vehicles Act
1992 Crl J 2063 – vehicle seized under section 207 of MV Act – Section 457 Cr.P.C. cannot be invoked as a present provision is laid down in MV Act itself for release of vehicle.
WHETHER THE POLICE HAS GOT RIGHT TO DISPOSE THE CASE PROPERTY SEIZED BY THEM IN A CRIMINAL CASE
It is pertinent to point out that we have seen from news paper and in visual media that the higher police officials were handed over the stolen articles to the parties concerned. Whether such a procedure is contemplated under law and whether the police has got right to dispose the properties seized by them.
Ganesh Vs State of Rajasthan – 1988 Crl J 475
The police has no power to dispose the property seized by the police – disposal by police without the order of Judicial Magistrate is illegal.
Gold and Cash
Sunderbhai Ambalal Desai Vs State of Gujarat 2003(1) CTC 175;
Properties should not be kept at police station for not more than 15 days to 1 month (Para 5 & 9)
Court or Police need not keep the property in their custody – Prepare Panchanama before handing over property – court should record evidence to avoid tampering of property (Para 6 & 9)
Valuable Articles:- Gold, Silver & precious tones – Trial court should pass orders at the earliest instead of waiting of completion for trial – photograph – (Para 11, 12)
Valuable Articles – should be produce before the Judicial Magistrate within one week of their seizure – similar procedure should be followed in respect of currency notes (Para 13)
Vehicles :-
Photograph of vehicle before return or sale – Para 16
Return of Liquor:-
Large quantity of liquor should not be kept in police station (Para 18)
Narcotic Drugs should be disposed of after recording evidence – (Para 19)
2014-2L.W. (Crl.) 473 - P.Raju & another Vs Staet rep by Deputy Superintendent of Police, Chennai.
Petition filed under section 401 read with 397 of the Code of criminal procedure praying to set aside the suo motu order dated 01.10.2013 and call for the entire records comprised in CC.No.6481 of 2012 made by learned Additional Chief Metropolitan Magistrate, Chennai.
IT ACT CASES
1992 Crl. L. J 1320 - Union of India Vs Janak Ganj, Lashkar, Gwalior and another
Criminal P.C. (2 of 1974), S.452 – Disposal of property – Seizure of cash – Jurisdiction of Magistrate to dispose of cash – case diary sent to court – diary containing warrant of authorization u/s 132A(1)© I.T.Act for handing over cash to department –without perusing diary, Magistrate directing delivery of cash to person from whom cash seized – Magistrate had no jurisdiction to enquire into and dispose of the property.
WILD LIFE PROTECTION ACT CASES
2019 CRL. LJ 2070 CALCUTTA
Wild life protection act (53 of 1972)
Sec 50(3) – Powers of magistrate – Release of confiscated vehicle – Magistrate can pass orders of release for confiscated vehicle
2002 Crl. LJ 349 - State of Maharashtra Vs Gajanan D. Jambhulkar
Criminal P.C.(2 of 1974). S. 457 – Release of motor vehicle – offence under Ss.9 and 39 of Wild Life Protection Act – Accused killed black buck – They were carrying guns with cartridges when arrested by police and their vehicle seized – Material on record prima facie discloses involvement of vehicle in commission of offence under Wlid Life Protection Act – Order releasing vehicle under provisions of Forest Act which was not applicable – illegal – causal approach in releasing vehicle seriously deprecated.
2004 Crl. LJ 3961 - Mathew Vs The Range Officer, Chedelath Range officer
Wild Life (Protection) act (53 of 1972). S. 39(1)(d) – Seizure of property – Provision that seized property becomes property of Central Govt – Applies only when it is found by competent court that offence is committed – Grant of interim custody of property to alleged offender – cannot be opposed by virtue of Section 39(1)(d).
FOREST ACT CASES
2006 Crl.L.J. 259 - State of Karnataka Vs K.Krishna Gowda and another
Criminal P.C.(2 of 1974) Ss. 451 , 457 – Release of seized cash /property – Application for – case registered for offence punishable u/Ss. 13(1)(e), 13(2) of Prevention of Corruption Act, 1988 with specific allegation that accused in course of his employment in various capacities has amassed wealth disproportionate to his known source of income – Cash of Rs.70,000/- as well as other valuable articles were seized in that context – order by court releasing properties and cash while investigation was still in progress, illegal. Para 11.
2009 Crl.LJ 23 - State of Orissa Vs Manoj Kumar Nayak
Forest Act (16 of 1927), S. 46 – Criminal P.C. (2 of 1974), Ss. 451, 457 – Release of seized property – Vehicle loaded with forest articles was seized –driver and timber smugglers fled away from vehicle – Escort person was arrested along with his motorcycle and a mobile phone – NO forest articles were seized – No material to show that motorcycle and material to show that motorcycle and mobile phone in question were used to facilitate commission of forest offence –power to release seized property or articles in question lies with criminal court and not with authorized officer.
1986 Crl LJ 1475 - State of Karnataka Vs AP Abdul Lathif
Section 6A, EC Act confers power of confiscation – so no entrustment of vehicle by the special court during pendency of trial or before the initiation of prosecution is permissible, but after the termination of trial if acquittal is ordered, custody can be given by the trial court.
The orders of criminal court regarding the interim custody can be challenge before the revisional court by invoking sec 397 or 401 of Cr.P.C. If an order under section 452 and 453 has been passed after the trial is over the same can be challenged by way of an appeal under section 454 Cr.P.C. before the court to which appeals ordinarily lie from conviction by the former court
Livestock:
Cows, goats, sheep, birds etc are called livestock. Where livestock is seized, the descriptive particlurs of such livestock such as colour, breed, age, and other identification marks should be noted and such property can be returned to its owner for interim safe custody. The Court can direct the person to whom the livestock is given for safe custody to file periodical report about the condition of the livestock. When no person claims livestock, it can be given to ‘’Govu sadan’ in case of cattle or to the place where the livestock is being protected and if no persons claims the livestock, the same may be sold by way of public auction and deposit the sale proceeds in Crimianl Court Deposits. After final disposal of the case, the sale proceeds of unclaimed property should be confiscated to the State. Explosive devices/Bombs:- Bombs should not be produced before court. Sooner after the seizure any bombs / explosive devices, the police should take precautions for safe handling and report the same to the Court. And that the police has to take steps to inform the same to Bomb Diffusal Squad/Team for necessary instructions for sending the explosive items for analysis. The court may pass appropriate orders which are essential for safe handling of explosive items and to send them to Forensic analysis and thereafter for its disposal with help Bomb diffusal team.
Rule 230 Crl.R.P:- Gold ornaments: Mint Master through a responsible Officer by pre-arrangement
Rule 234 Crl.R.P :- Counterfeit coins: They shall be forwarded together with any dies, moulds etc., which may have been produced in the case to the nearest Treasury or Sub-Treasury, with request that they may be remitted to the Mint for examination. A concise and accurate report should also be sent containing a description of the case and the sentence imposed.
Rule 234 Crl.R.P:- Forged Currency: Notes It is a matter for the
decision of the Court with tries the case. –(1) deliver the same to police for destruction; or (2) If they are of special interest, police may make them over to the Criminal Investigation Department for this purpose; (3) All forged currency notes brought before the Court shall be handed over to the Police for being forwarded to the Issue Department of the Reserve Bank of India, with a brief report of the case.
Rule 234 Crl.R.P: Arms and ammunitions: It should be sent to the nearest Arsenal for disposal.
Disposal of Excisable Goods:- In the case of excisable goods held in the custody of Criminal Courts, notice of he date of auction or other method of disposal shall be issued to the Excise Authority concerned requiring such authority to arrange for the collection of the duty leviable if any, on the goods and for the issue of transport permit where necessary. The Excise Authority may also be required to satisfy itself that the purchaser in auction or otherwise is licensed to deal in such goods. (Rule 233).
Some important citations are given below:-
2006 1 L.W. (Crl) 429. - Sec.451 of Cr.P.C - Anjana vs. state.
Return of vehicle- it is of no use to keep such seized vehicle in police stations for a long period and it is for the Magistrate to pass appropriate orders. Referred: Sunderbhai Ambalal Desai vs. State of Gujarat. 2003 1 CTC 175 = 2003 SCC (Crl). 1943.
2007 (1) TLNJ (Crl) 415. - Arun @ Arunprasad vs. State, Pasupathipalayam P.S.
Sec.451 – Even in cases exclusively triable by the Court of a Session in which Judicial Magistrate does have only a power of inquiry, the Judicial Magistrate is empowered with the power u/s.451 and 457, of directing interim custody or for the disposal of the properties seized during investigation.
2008 (1) MLJ 730 SC = 2008 (2) MLJ631 (SC) Cr.P.C - Sec 451 – Wild life (Protection) Act Sec 50(1) (C) and 39(d) –
Magistrate has power to release Vehicle u/s 451 Cr.PC, Which are otherwise liable for Confiscation.
(2008) 1 MLJ (Crl) 730 (SC) – State of M.P. and Others Vs. Madhukar Rao – Code of Criminal Procedure,1973 (2 of 1974), Section 451 –
Wild Life (Protection) Act (1972), Sections 50 (1) (c) and 39 (d) – Question whether vehicle seized under Section 50 (1) (c) of the Act, 1972, can be directed to be released by a Magistrate during the pendency of trial in excise of powers under Section 451 of Code of Criminal Procedure – Sub-Inspector, Excise found a Tata Sumo vehicle carrying 206 Kgs.
Antlers – Vehicle owned by respondent who was not present at the time of commission of offence – Vehicle was seized – Respondent moved a petition before Judicial Magistrate for release of vehicle on Supurdnama stating that he was not an accused in the case and not in any way concerned with commission of offence – Allowed – Revision filed stating that the order was in disregard to Section 39 (d) of the Act which holds that seized vehicle becomes property of Government and Magistrate has no power to release the vehicle – Allowed – Set aside in Writ Petition filed by Respondent – Held, Section 50 the Act and amendments made do not in anyway affect the Magistrate's power to make an order of interim release of the vehicle under Section 451 of Code of Criminal Procedure, 1973. RATIONES DECIDENDI - I. “Provisions of Section 50 of the Wild Life (Protection) Act, 1972 and the amendments thereunder do not in any way affect the powers of Magistrate to order interim release of the vehicle.” ----II. “Section 39 (1)(d) of Wild Life (Protection) Act, 1972 will not come into effect on mere seizure of the vehicle, before competent jurisdiction found the accusation and the allegations made against accused as true and records the finding that the seized vehicle as a matter of fact was used in the commission of offence.”
WHETHRE SECTION 28 Cr.P.C IS A BAR IN MAKING OVER OF SESSIONS CASES TO AN ASSISTANT SESSIONS JUDGE WHERE PUNISHMENT IS MORE THAN 10 YEARS – AN EAGLE VIEW
M. KARUNANITHI BSc., M.L.,
SENION PANEL COUNSEL, UNION OF INDIA
FORMER SPECIAL PUBLIC PROSECUTOR, Q BRANCH CID
HIGHCOURT – MADURAI BENCH
Email:- kanlaw1971@gmail.com
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INTRODUCTION :-
The code of criminal procedure, 1973 broadly classifies two types of criminal trials, one is trial before the learned Judicial Magistrate and another is Trial before court of session. The former has got power to take cognizance directly whereas the later has no original Jurisdiction to take cognizance of offences directly.
Sec 193 of code of criminal procedure, 1973 restricts the power on the court of session in taking cognizance. In this article the author intends to discuss about the power of the criminal courts and the jurisdiction of criminal courts, more particularly in reference to Sec 194 of Cr.P.C, 1973
DISCUSSION:-
The topic can be approached on the following headings,
1. Meaning of taking cognizance
2. Powers of Criminal Court
3. Powers of Sessions Court and Jurisdiction
I. Taking Cognizance:-
The term taking cognizance has not been defined in the code of criminal procedure, 1973.
Section 190 of code of Criminal Procedure, 1973 speaks about taking cognizance of offences.
Chapter XIV – Sec 190 of Cr.P.C speaks about four types of taking cognizance of offences… for easy reference section 190 is extracted hereunder,
“190. Cognizance of offences by Magistrates – (1) Subject to the provisions of the chapter, any Magistrate of the first class, and my Magistrate of the second class specially empowered in this behalf under sub-section (2) may take cognizance of any offence-
a) upon receiving a complaint of facts which constitute such offence,
b) Upon a police report of such facts;
c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
In the following judgments, the term taking cognizance of offences has been discussed elaborately.
1. 2008 AIR SCW 5881 -Fa2008 AIR SCW 5881 -Fakhruddin Ahmad Vs State of Uttaranchal
Taking Cognizance : Meaning – The word ‘cognizance has no esoteric or mystic significance in criminal law or procedure. It merely means – become aware of and when used with reference to a court or Judge, to take notice of judicially, The court said that taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such applies his mind to the suspected commission of an offence;
(2011) 3 SCC 496 – Mona Pawar Vs High Court of Judicature of Allahabad
Phrase taking cognizance of : Meaning of – The phrase taking cognizance of an offence and not of offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer.
POWERS OF CRIMINAL COURT :-
1. Chapter III of code of Criminal procedure, 1973 speaks about the powers of criminal courts - Sec 26 to 35 of Cr.P.C deals with powers of the criminal court in trying the case and awarding punishment. As per Sec 26 of Cr.P.C. any offence under IPC may be tried by the
1. High Court
2. Court of Session
3. Any of the court by which such offence is shown in the first schedule to be triable.
Sec 26 of the code of criminal procedure, 1973 starts with subject to the other provisions of this court, so section 26 of criminal procedure code cannot be read independently. The Section 26 of criminal procedure code has to be read conjointly with the other provisions relating trial of offences.
26. “Courts by which offences are triable – Subject to the other provisions of this code.-
a) Any offence under the Indian Penal Code (45 of 1860) may be tried by
i) The High Court or
ii) The Court of Session, or
iii) Any other court by which such offence is shown in the first schedule to be triable
Provided that any offence under section 376 section 376A, section 376 B, section 376C section 376D or section 376E of the Indian Penal Code (45 of 1860) shall be tried as far as practicable by a court presided over by a woman.
b) Any offence under any other law shall, when any court is mentioned in this behalf in such law, be tried by such court and when no court is so mentioned, may be tried by
i) The High Court, or
ii) Any other court by which such offence is shown in the first schedule to be triable.
· Sec 28 of code of criminal procedure is extracted hereunder,
“28. Sentences which High Courts and Sessions Judges may pass – 1 A High Court may pass any sentence authorized by law.
2. A Sessions Judge or Additional Sessions Judge may pass any sentence authorized by law; but any sentence of death passed by any such judge shall be subject to confirmation by the High Court.
3. An Assistant Sessions Judge may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years.
* As per sec 28 of Cr.P.C. the session judge or Additional Session Judge may pass any sentence authorized by law. But sentence of death passed by the sessions judge shall be subject to confirmation by the high court.
* As per Sec 28(3) Cr.P.C an Assistant Sessions Judge may pass any sentence authorized by law except
1. A sentence of death
2. Imprisonment of Life
3. Imprisonment of a term exceeding 10 years.
* Now the point for consideration is whether court of session means and includes Assistant Session Judge, the following incidental questions are also arises for consideration
1. Whether Assistant Sessions Judge is subordinate to court of session.
2. Whether offences punishable with sentence of life can be made over to Assistant Session Judge.
It is pertinent to be pointed out that the Sessions Judge and Additional Session Judge are having equal power but an Assistant Sessions Judge is Subordinate to the Court of Session Judge /Additional Session Judge.
Section 6 of Criminal procedure code in chapter 2, 6 of Cr.P.C defines the class of criminal court.
Obviously Assistant Sessions Court has not been classified u/s 6 Cr.P.C
Whether Assistant Session Judge is subordinate court to the Sessions Judge
As per Section 10(1) Criminal procedure code all Assistant Session Judges shall be subordinate to the Session Judge in whose court they exercise jurisdiction. Hence it is amply clear that court of Sessions Judge and Assistant Session Judge are not co-equal judges. Now moot question is that whether offences like Sec 304(B) IPC where the sentence of life can also been imposed but the minimum sentence is 7 years.
The orders as well as the conviction recorded by the learned Assistant Sessions Judge can be questioned before the Principal Sessions Judge concerned, since the Assistant Sessions Judge is subordinate to the sessions court. The Assistant Sessions Court cannot receive appeals and sessions case directly.
AIR 1962 ALL 450 – Municipal Board, Bijnor Vs V.Bhim Singh
Para 10 – In the case of a court of session, all the judges do not have the same power. The powers of Assistant Sessions Judges are l……
Para 16 – for all practical purposes the court of an Assistant Sessions Judge is an inferior criminal court with reference to the Sessions Judge.
AIR 1957 Patna 375 = 1957 Crl J 879 (Full Bench)
An appeal was admitted and allowed by an Assistant Sessions Judge, as against admission and order of acquittal an appeal was presented before the High Court, Patna – Full Bench of Patna high court has held.
‘ Para 15. In the result, I hold that the learned Assistant Sessions Judge in the present case had no authority to receive and admit the appeal and that he heard it in contravention of the provisions of Sub-section (2) of section 409 of the code. His order acquitting the respondent was clearly without jurisdiction and must be set aside. The appeal is accordingly allowed and the order of the learned Assistant Sessions Judge acquitting the respondent is set aside.”
“Para 19 – so far as an Assistant Sessions Judge is concerned, Sub section (3) of Section 17 makes it perfectly clear that he is subordinate to the Sessions Judge, and that he exercises jurisdiction in the court of that Sessions Judge.
The appeal was allowed holding that an Assistant Sessions Judge can not receive an appeal from Judicial Magistrate for easy reference section 194 ………
Section 194 Crl.P.C -
194. Additional and Assistant Sessions Judges to try cases made over to them – An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try.
It is very relevant to mention about the first schedule annexed in the code of Crl.P.C, 1973. In the schedule it has been classified in column 6 “by what court triable”. It has pointed that triable by
1. Magistrate of the first class and
2. Court of session
Now the schedule and section 194 CrPC may be read as whole. Thus there is no classification whether triable by Additional Sessions or Assistant Sessions. But the code speaks about only court of session.
Now, vital question is cases like one under section 307 IPC and 304 (B) IPC can be made over the Assistant Sessions Judge for trial, since life sentence can also be awarded.
If the Principal Sessions Judge is making over the sessions case to Assistant Sessions Judge for trial of cases like 307 IPC and u/s 304(B) IPC the learned Assistant Sessions Judge/Trial Judge can not award the maximum sentence as contemplated under law. The very order of making over of such case would amounts to pre determination that in case of conviction the sentence cannot be awarded more than 10 years, because an Assistant Session Judge cannot award sentence of imprisonment more than 10 years, then victim will be victimized by the lesser punishment. Unlike the trial before the learned Judicial Magistrate the case cannot be sent to higher court (here CJM court) session judge for awarding higher punishment as available u/s 325 Crl.PC There is no similar provision in Crl.P.C. So also the cases falling under such category ought not to be made over to the Assistant Sessions Court.
As per section 325 Cr.P.C whenever the Learned Judicial Magistrate is of opinion after hearing the evidence for prosecution and defense and that the accused ought to have been awarded different punishment then the same has to be place before the Chief Judicial Magistrate. But no such provision is available in the Cr.P.C to sent the case from Assistant Sessions Judge to the court of session for awarding higher punishment.
2012 Crl L J 4726 (DB) Bombay - Prabhakar L.Pawar Vs State of Maharastra
“Para 14- we are therefore of the view that in cases were the sentence which has to be awarded is more than 10 years, the session judge is not authorized to assign such cases to assistant session judge in view of section 28 of the criminal procedure code which is a substantial provision in the criminal procedure code and therefore section 28 will have to be construed as a provision which imposes a bar on the session judge in assigning cases to the assistant session judge were the sentence above ten years can be awarded”
“Para 17 – Copy of this order be circulated to all the sessions jdudges in Maharastra.
CONCLUSION:-
As discussed above and as decided by the Hon’ble Division Bench of Bombay High Court Section 28 of Cr.P.C restricts the power of the learned sessions judge in making over trial of cases to Assistant Sessions Judge, where punishment for such case is more than 10 years.