Bombay High Court
Mr. Ajay S/O Daryailal Mehta And Other vs Mr. Mohd. Abid Aamin Rangoonwala And ... on 24 March, 2025
2025:BHC-NAG:3379-DB
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.200 OF 2024
PETITIONERS : 1 Mr. Ajay S/o Daryailal Mehta,
Aged 65 years, Occ. Business/Partner of
M/s. Mehta Oil Company.
2 Mr. Anuj S/o Ajay Mehta,
Aged 36 years, Occ. Business/Partner of
M/s. Mehta Oil Company.
..VERSUS..
RESPONDENTS : 1 Mr. Mohd. Abid Aamin Ranggonwala,
Aged about 33 years, Occ. Business, R/o.
Rangoonwala Building, Fawara Chowk,
Gandhibag, Nagpur.
2 State of Maharashtra,
through Police Station Officer, Police
Station Ganeshpeth, Nagpur.
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Mr R. M. Bhangde, Advocate for Petitioners.
Mr S. S. Sitani, Advocate for Respondent No.1.
Mr A. G. Mate, AGP for Respondent/State.
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CORAM : M. W. CHANDWANI, J.
DATED : 24th MARCH, 2025.
ORAL JUDGMENT
1. Heard.
2. Rule. Rule made returnable forthwith. Heard finally with the
consent of the learned counsels appearing for the parties.
3. Before I proceed to deal with the controversy, let me discuss
the law point on seizure of immovable property. The Full Bench of this
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Court in the case of Sudhir Vasant Karnataki vs. State of Maharashtra and
Ors. and other connected petitions, 2010 SCC OnLine Bom 1808 has
ruled that in a criminal offence, an immovable property cannot be seized
by the police under the provisions of Setion 102 of the Code of Criminal
Procedure. Rather, this judgment has been upheld by the Hon'ble
Supreme Court in the case of Nevada Properties Private Limited vs State
of Maharashtr and Anr., 2019 (20) SCC 119. Even, the Rajasthan High
Court in the case of Amrit Lal Kumawat and Ors. vs. The State of
Rajasthan and Anr., 1998 SCC OnLine Raj 336, relied upon by the
petitioners, has opined that an immovable property cannot be seized by
the police nor the Magistrate can pass any order under Section 451 of the
Cr.P.C. in respect of such properties. Rather, there is no dispute on this
aspect.
4. The controversy that lies between the parties is that the
petitioners claiming themselves to be the tenants of the immovable
property namely a Shop Block situated at Gandhibagh, Nagpur owned by
respondent No.1. The contention is that during the intervening night of
01.04.2023 and 02.04.2023, respondent No.1 by committing theft,
criminal trespass and breaking the lock of the premises has forcibly taken
possession of the property pursuant to which, a crime bearing No.105 of
2023 has been registered with Ganeshpeth Police Station against
respondent No.1. During the investigation of the said crime, the key of
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the said Shop was seized by the investigating officer from possession of
respondent No.1. After completion of the investigation, charge sheet
came to be filed. The pendency of the civil suit between the petitioners
and respondent No.1 is not disputed. The petitioners have filed an
application for possession of the property under Section 6 of the Specific
Relief Act, whereas respondent No.1 has filed the suit for temporary
injunction against the petitioners not to disturb his possession on the
premise that the possession has already been handed over by respondent
No.1 and after handing the possession, the petitioners started demanding
the amount. It is also not in dispute that the temporary injunction
application filed by respondent No.1 has been rejected. The controversy
with regard to the dispute lies in the criminal proceeding wherein,
respondent No.1 applied for possession of the key which was seized by
the police from his possession. The learned Trial Court rejected his
application mainly on the ground that the proceeding under Section 145
of the Criminal Procedure Code was pending before the Sub Division
Magistrate, Nagpur. A revision application came to be filed by
respondent No.1 against the order of rejection passed by the learned Trial
Court in Misc. Criminal Application No.1698 of 2023. The learned
Sessions Judge after considering the facts, disposed of the proceeding by
holding that the police cannot seize immovable property under Section
102 of the Cr.P.C. and therefore, directed the police to return the key to
respondent No.1.
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5. Mr. Bhangde, learned counsel appearing for the petitioners
submitted that though immovable property cannot be seized in the crime
but according to him, a key which is a movable property has been seized
in the crime. According to him, a crime in respect of dispossession of the
property including theft and trespass has been committed by respondent
no.1 in a civilized society. According to him, the alleged key is a key of an
immovable property. Rather, the crime proceedings mention respondent
No.1 as the accused, in accordance with the principle that the benefit of
the doubt in criminal proceedings goes to the accused. The learned
counsel for the petitioners submitted that the learned Sessions Judge
committed a serious error by overturning the order of rejection of the
learned Trial Court by ignoring the very same principle. According to
him, even under Section 456 of the Cr.P.C., the Criminal Court has
power to restore the possession of immovable property if an offence in
respect of dispossession of the property has been committed. According
to him, though the petitioners have not applied for obtaining possession
of the key on Supratnama but they have a serious objection against the
direction to return the key to respondent no.1 during pendency of the
trial. According to him, the key should be returned in a criminal trial
only after its conclusion so that an appropriate order can be passed under
Section 456 of the Cr.P.C. To substantiate his claim, he seeks to rely on
the case of Amrit Lal Kumawat (supra), wherein the Rajasthan High
Court in para 15 has held as under :
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"15. It may also be pointed out that in the instant case
the immovable property which was in dispute (the room
situated on the first floor of the temple which was formally in
possession of Ramanlal) was not seized by the police officer at
any time. No seizure memo is available on the file of the lower
Court. The site-inspection note however contains a recital that
after the inspection of the site the keys of the room were seized
by the investigating officer. It is, therefore, obvious that in the
instant case no immovable property was seized by the police or
any other authority. Only 2 keys had been seized by the
investigating officer. The keys were movable properties and,
therefore, they could have been seized by the police officer
under Section 102 of the Criminal Procedure Code and the
learned Judicial Magistrate was competent to pass orders
regarding the keys only."
Reliance is also placed on the decision of the Madras High
Court in the case of B. Lalitchand Nadar vs. State and Anr., 1990 SCC
OnLine Mad 336, wherein the Madras High Court in para 5 of the
decision has held as under :
5. Learned Counsel appearing for the hirer would repel such a
submission by stating that it is not as if the aforesaid decision
had not been cited before the Court below and the same had not
been considered. He would further submit that learned
Magistrate, on careful scrutiny and scanning of the facts of the
present case, found the aforesaid decision as not applicable to the
case on hand and to accept such a view of the financier is not
legally permissible, in the circumstances of the case. He would
further submit that before learned Magistrate, a decision
reported in 1987 Law Weekly (Criminal) page 487 (C.
Gopalaswamy v. Nagarajan and two others) had been cited and
he in turn relied upon the decision for arriving at a just decision
in the case, in the sense of returning the interim custody of the
vehicle to the hirer. He would invite my attention to paragraph
19 of the judgment, wherein a learned Judge of this Court
observed as follows :
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"It follows, therefore, from the above decisions that the
power of the Court under S.451 Cr.pC. To order interim
custody of the property, though discretionary, as is clear
from the words "as it thinks fit" in the Section, has yet to
be exercised on the basis of the well established judicial
principles. It is true that regarding properties for the
possession and use of which permits or licences are
necessary, as in the case of motor vehicles, fire arms etc.,
the general rule underlying the return of properties has
to be applied with slight modification. In the case of
such properties, a licence or permit could be taken to
reflect the true position regarding ownership of the
property. In the case of vehicles, the additional factor
that would be relevant will be the possibility of putting
the vehicle to the best use, even during the period of
interim custody. The return of the vehicle to one who
has the registration certificate in his name and in the
case of public vehicle who has the route permit in his
name would therefore he quite more advantageous than
to return it to one who has no such claim. It is on the
basis of these principles that in the decision referred to
by the learned counsel for the petitioner that the vehicle
had been ordered to be returned to the person in whose
name the registration certificate stood, and at times to
the persons from whom the vehicles were seized. But all
the above considerations are subject to one basic
principle that the possession of that property by the
claimant should have been a lawful possession and
should not have been acquired through the commission
of a crime. It is not difficult to discern the golden thread
that runs through the web of these decisions that
interim custody of property should not be granted to
one, who has acquired possession of the same, through
the communications of a crime-be "he the person from
whose it was seized or be he the holder of the
registration certificate or permit, or the person who can
make the best use of the vehicle. One who has acquired
possession of a property through unlawful means and
through the commission of an offence ought not to be
given even interim custody, to enable him to enjoy the
benefits of his crime. When such a situation arises,
considerations like the property being seized from him,
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the registration certificate being in his name and he
probably being the person who could best use the
vehicle, would all lose their significance."
Lastly, reliance is placed on the decision of the Kerala High
Court in the case of Giji vs. A. K. Gopinathan Nair, 1995 SCC OnLine
Ker 130., wherein the Kerala High Court in para 6 of the decision has
observed on the same lines as under :
"6. The power of the Court under Section 451 Crl. P.C. to order
interim custody of the property, though discretionary, as is clear
from the words "as it thinks fit" in the Section, is seemed to be
exercised on the basis of the well established judicial principles. It
is true that, regarding properties for the possession and use of
which permits or licences are necessary, as in the case of motor
vehicles, fire arms, etc., the general rule underlying the return of
properties has to be applied with slight modification. In the case
of such properties, a licence or permit could be taken to reflect
the true position regarding ownership of the property. In the case
of vehicles, the additional factor that would be relevant will be
the possibility of putting the vehicle to best use, even during the
period of interim custody. The return of the vehicle to one who
has the registration certificate in his name and in the case of
public vehicle who has the route permit in his name, would
therefore be quite more advantageous than to return it to one
who has no such claim. It is on the basis of these principles that
the vehicles are normally ordered to be returned to the person in
whose name in registration certificate stood, and at times to the
persons from whom the vehicles were seized. But, all the above
considerations are subject to one basic principle that the
possession of that property by the claimant should have been a
lawful possession and should not have been acquired through the
commission of a crime. It is not difficult to discern the golden
thread that runs through the web of the decisions that interim
custody of property should not be granted to one, who has
acquired possession of the same through the commission of a
crime- be he the person from whom it was seized or be he the
holder of the registration certificate or permit, or the person who
can make the best use of the vehicle. One who has acquired
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possession of a property through unlawful means and through the
commission of an offence ought not to be given, even interim
custody, to enable him to enjoy the benefits of his crime. When
such a situation arises considerations like the property being
seized from him, the registration certificate being in his name and
he, probably being the person who could best use the vehicle,
would all lose their significance. It is seen that the petitioner has
prima facie established that the bus and the documents in respect
of the bus were entrusted
with him in terms of the agreement filed as Annexure-I to this
petition."
6. The sum and substance of the argument of Mr Bhangde, the
learned counsel for the petitioners is that the key is not an immovable
property and the crime proceeds cannot be given to the accused,
therefore, the order of the learned Sessions Judge is required to be set
aside.
7. Conversely, Mr Sitani, the learned counsel for the respondent
No.1 submitted that seizing of the key is nothing but the power of
seizure of immovable property which is prohibited under the provisions
of the Criminal Procedure Code. More particularly, Section 102 of the
Cr.P.C., the power of seizure of police officer does not include seizure of
immovable property. According to him, the Court cannot pass any order
in respect of seizing of immovable property. He submits that he has
initiated proceedings under Section 6 of the Specific Relief Act. He
further submits that rejection of interim application has no bearing on
this case, since respondent No.1 is entitled to possess the key and if any
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order in the Civil Court is passed, then a decree can be executed in the
Civil Court for restoration of possession but the Magistrate indirectly
cannot do what the Civil Court is required to do. Therefore, he submitted
that the judgment of the learned Sessions Judge is well reasoned and does
not require interference.
8. I have heard the learned counsel for the petitioners, the
learned counsel for respondent No.1 and the learned A.G.P. for
respondent No.2/State. Having gone through the material available on
record more particularly, the judgments impugned, it transpires that the
key has been seized in the crime registered at the instance of the
petitioners on the allegation of dispossession from immovable property,
theft and criminal trespass. It is not in dispute that the lock by which the
premise is closed belongs to respondent no.1.
9. Chapter XXXVI of the BNSS deals with disposal of the
property, wherein the Magistrate is empowered during pendency of the
trial to hand over any property (immovable) to the person who is entitled
to possess the same. The provision further contemplates that the said
order will be subject to the final order of disposal of the property at the
conclusion of trial.
10. No doubt, Section 456 of the Cr.P.C. gives power to restore
the possession of the immovable property to a person who has been
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dispossessed at the conclusion of the trial in relation to an offence
involving dispossession from immovable property when the accused is
convicted for the said offence. To my mind, this power is an independent
power in respect of whether the property has been seized in the crime or
not. Therefore, this Section will not help the petitioners to argue that the
key cannot be handed over to respondent No.1, in wake of the settled
position of law that immovable property cannot be seized in the crime
and as per submissions of the petitioners, the keys are not immovable
property.
11. What remains is that the Magistrate has to consider who is
entitled to possess the property pending the trial, particularly in this case,
the key. The factum of dispossession is not disputed by the petitioners.
Rather, as stated above, the suit for restoration of possession is pending
before the competent Civil Court. I doubt whether the key seized in the
crime is a crime proceed. The fact remains that as of today, it is an
admitted position that respondent No.1 is in possession of the suit
property and the key is of the lock which belongs to respondent No.1.
12. The learned Trial Court was right in rejecting the application
more particularly, for the reason that the proceedings under Section 145
of the Cr.P.C. were pending at the relevant time and nobody informed
the updated position to the learned Trial Court. Considering the
submission, I need not go into the controversy whether seizure of key of
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the immovable property will amount to the seizure of the immovable
property as that will be taken care of in appropriate proceedings. For the
present, even if it is presumed that the key is a movable property and it
has been handed over by the order of the learned Sessions Judge to
respondent no.1, considering Chapter XXXVI in respect of disposal of
the property, I do not find that the ultimate result of allowing the
application by the learned Sessions Judge can be faulted with. At the
conclusion of the trial, if the learned Trial Court concludes that the
offence of dispossession from immovable property has been committed,
irrespective of this order i.e. the order of handing over the key to
respondent No.1, the Court still has the power to exercise its authority
under Section 456 of the Cr.P.C.
13. With the above observations, I do not find merit in the writ
petition. Accordingly, it is dismissed.
14. Rule is discharged in above terms.
(M. W. CHANDWANI, J.)
Tambe
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 03/04/2025 10:30:24
