IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH_AT DHARWAD DATED THIS THE 25 DAY OF MAY, 2010 BEFORE THE HON’BLE MRJUSTICE JAWAD RAHIM .RIi0 BETWEEN: 1. BASAVARAJ, S/C GUDDAPPA AGAD1, AGED ABOUT 67 YEARS, 0CC: AGRICULTURE, R/O MOTEBENNUR, TO: BYADAGI, DIST: HAVERI. 2. CHANNABASAPPA, 5/0 PUDrAPPA KULENUR, AGED ABOUT 60 YEARS, 0CC: AGRICULTURE 1 R/O MOTEBENNUR, TQ: BYADAGI, DIST: HAVERI. 3. NANJUNDAYYA, 50 GURAYYA HAVEPJMATH AGED ABOUT 58 YEARS &_ $/fl MQTERFNI\JL:R TQ: BYAGI, DIST: HAVERI. A C.AT\fAftiAiATh P 1 A Dj’J BHARAMAGOUDA. PATIL k’f 4 2 AGED ABOUT 65 YEARS 0CC: AGRICULTURE RIO MOTEBENNUR, TQ: BYADAGI, DIST: HAVERI. 5. MALLESHAPPA, 5/0 NEELAPPA BAflALAKAflI AGED ABOUT 60 YEARS 0CC: AGRICULTURE R/O MOTEBENNUR, TQ: BYADAGI, DIST: HAVERL 6. BHIRARADDI @ BHIMANNA 5/0 HANUMARADDI JANGAREDDER AGED ABOUT 42 YEARS 0CC: AGRICULTURE R/O MOTEBENNUR, TQ: BYADAGI, DIST: HAVERL 7. PANDAPPA S/O NINGAPPA ARER AGED ABOUT 58 YEARS 0CC: AGRICULTURE R/O MOTEBENNUR, TQ: BYADAGI, DIST: HAVERL 8. VEERAPPANNA © VIRUPAXAPPA 5/0 HOUYAPPA GUDAGUR AGED ABOUT 55 YEARS 0CC: AGRICULTURE R/O MOTEBENNUR, TQ: BYADAGI, DIST: HAVERI. 9. NAGARAJ, 5/0 PARAMESHWARAPPA BANAKAR AGED ABOUT 46 YEARS,OCC: AGRICULTURE R/O MOTEBENNUR, TQ: BYADAGI, DIST: HAVERI. PtTITiONERS (BY SRI V.M SHEELAVANT, ADV.,) AND: TIPPANNA, S/0 RAMAPPA MAILANNANAVAR AGED ABOUT 40 YEARS 0CC: AGRICULTURE, R/0 KANAVALLI TQ & DIST: HAVERI .RESPONDENT (BY SRI MVMIREMATH, ADV, AND SRI VSKALASURMATH,A D’Js) THIS CRLP IS FILED UNDER SECTION 482 CRRS PRAYING TO CALL FOR RECORDS, ALLOW THIS PETITON AND SET ASIDE THE ORDER DATED 18J220O9 PASSED B Y THE SESSIONS JUDGE AT HAVERI IN CRLRRNOJ65/2O07 PRODUCED AT DOCUMENT NO7 AND THE ORDER DATED 19J22007 PASSED BY ADDL. CIVIL JUDGE (JRDN) & JMFC H AVERI IN RCNOJ68/20O7 PRODUCED AT DOCUMENT NO6 A ND CONSEQUENTLY RELEASE THE HEBUFFOLO SEIZED IN RCNOJ68/2007 TO THE PETITIONERS. THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER In tb’s revision, the order dated 18J22009 in CrLRPJ65/07 on the ffle of Sessions Judge, Haven, is nuestioned whereby the order passed by the iearned tnia judge arantina interim custody of a buffalo to the 4 2. Heard learned counsel on both sides. 3. The contextual facts are: a) Respondent-Thammanna, a resident of Kanavali village lodged a private complaint under Section 200, Cr.P.C. seeking prosecution of the petitioner herein on the allegation, in the village, villagers had arranged a procession for performing the pooja and other rituals to the deity of Motebennur village. The buffalo was also part of the procession which was to be sacrificed on culmination of all the rituals to Goddess Dyamavva. He alleged the petitioner herein along with Bhojaraj Rudrappa Ballary, Guddappa Karlyappa Alur and Nagappa Honnammanavar intercepted the devotees and took away the buffalo in a tractor-trailer bearing No.KA-27/T-9696 to be sacrificed to the deity of Dyamavva. He alleged they had no right to do so as the buffalo belonged to the villagers of Kanavall village. b) Along with the complaint, he flied an application under Section 94, Cr.P.C. seeking to issue of search n -‘- 5 warrant to trace the animal and seize it from the illegal custody of the petitioner and his accomplices. c) The jurisdictional magistrate on receipt of the private complaint, did not record the sworn statement, but referred it to the jurisdictional police for enquiry and report, exercising power under SectIon 156(3), Cr.P.C. However, the magistrate, examining the allegation in the application under Section 94, Cr.P.C., issued warrant to be executed by S.M.Katagi, advocate, court commissioner with the assistance of Circle Inspector of Police, Byadgi. d) In pursuance to the commission warrant Issued in terms of Section 94, Cr.P.C., the commissioner seized the buffalo found at Motebennur village and recorded It in the Panchnama on 18.12.2009 authenticated by witnesses. The seized animal was brought before court. e) At this juncture, complainant Thlppanna filed an application under Section 457, Cr.P.C. seeking interim custody. Similar application was also filed by the petitioner seeking interim custody. -‘ 1i 6 f) Both the applications were heard and by the impugned order dated 19.12.2007, the petitioner’s application was rejected, while allowing the application of Thippanna, granting him interim custody. g) Assailing it petitioner was in Crl.R.P.165/07 before the learned sessions judge who found no favour and dismissed the same. Assailing both these orders, he has filed this appeal under Section 482, Cr.P.C. 4. Learned counsel for the petitioner would submit the order passed by the magistrate Is illegal and unsustainable as it Is passed without jurisdiction; he submits as on the date the Impugned order was passed, there was no case pending either for enquiry or trial before the magistrate, and hence, he could not have issued the warrant for search and seizure of the animal under Section 94, Cr.P.C. 5. The second ground is, when the complaint is presented, it was lncumbent on the part of the magistrate to take cognizance; since he had not done so, he had no jurisdiction to pass any further order like the one passed under Section 94, Cr.P.C. In other words, his contention &4. 7 is, since the magistrate had, on receipt of the complaint, referred it for investigation by the jurisdictional police under Section 156(3), Cr.P.C.., there was no case on his file and hence, no order could have been passed. 6. The last ground urged is, even If it is presumed the learned magistrate could pass the order under Section 94, Cr.P.C. to Issue search warrant, such order has to be based on material proof that the property/live stock to be seized was the subject matter of theft or crime. Alternatively, he contends since the buffalo was seized from the possession of the applicant under Sections 451 and 457, Cr.P.C., he should have been granted interim custody. 7. Learned counsel for the respondent has opposed all grounds. 8. It is not in dispute that the 1 respondent Is the complainant before the jurisdictional magistrate alleging theft of buffalo which, according to him, belonged to the residents of Kanavall village. Petitioners are arraigned as accused in the private complaint and it is alleged they had P.. 8 taken away the buffalo for sacrificing it to the deity, Dyamavva of Motebennur village, against the interest of residents of village Kanavaii. Records show there is inter se dispute between the villagers of Motebennur village about ownership of the buffalo. While the complainant alleges it belongs to Kanavali village, petItioners contend it belongs to Motebennur village. It is also not in dispute, on presentation of the complaint, the learned magistrate has not taken cognizance, but referred to the jurisdictional police for investigation, exercising power under Section 156(3), Cr.P.C. At that stage, he has passed the order under Section 94, Cr.P.C. to search and seize the buffalo. 9. The first ground against the impugned order is, since the magistrate had mit taken cognizance on the basis of the private complaint, he could not have passed the order for search and seizure of the buffalo under Section 94, Cr.P.C. At this juncture, it is of relevance to extract the said provision. Section 94, Cr.P.C. reads thus: “Search of place suspected to contain stolen property, forged documents, etc - (1) If a District Magistrate, Sub-divisional 9 Magistrate or Magistrate of tne first lass upon information and after such inquiry as he thinks necessary, has reason to believe that any place i used for the deposit sale of stolen roperty r for tne depo it ale or p odi. tti f any objectionable article to which this section applies or that any such objectionable article Ic depncited in any place, he may by warrant authonse any police officer above the rank of a constabie (a) to enter with such assistance as may be required, such place (b) to search the same in the manner specified in the warrant c) to take possession of any property article therein found which he reasonably suspects to be stolen property objectionable a t dc o Ah ci his ectio applies d t n i t orpr •‘ç ‘1 iN 4 4 fl 2 0 2 n e pt t e fterde ake oef ai,rt e t I e ae a 0’ y 0 1 c to (2) The obje ttonabi articles to which this sectiofl applies are- (a) counterfeit coin; (b) pieces of metal made in contr 1 °’ of the Metal ioken5 Act, j889 ci of t889), of brought into India in contMV1t 0 ti of anY nouflCatboi for the time inq in force under sectiOIl ii of the Customs Act. i962 (52 of j962) (c) counwrf& currencY note; counterfeit stamps; (d) forged doCUm& (e) false seals; (f) obsCe objects referred to in sectlofl 292 of the Indian Penal code (45 of t860) (g) lnstmmauts or mat&als used for the production of any of the articles mentio in clauses (a) tO (f).” Ihetll0re1 for passinQ such order, It is not necessatY that a case should be pendinG for enqultY or trial on the file of the gistnte All that is required is, subject to the satisfactiohi of the magistrate concernedt that he has reason o believe the place is used for5 onnq or deposit of stolen propeth or any object onablt mater’al’ mere .. no conditOhl precedt in section 94 ‘hat suc’l poIer should b pyerci*d only if there c any case 0 pdh(J on his file 1 eiat’Pq to rommi3b°” ef the offence psinuSM under the I-diar pant 1 rode i aiw otnet for the tiroc betP2 4’ at II force Therefor€. the contention canvassed that such order could not have been passed is not worthy of acceptance 10 Regarding the second ground that since the magistrate had not taken cognizance, there was no proreeding/enquiry pending on his file it has to be held that the very presentation of the complaint before the magistrate and its receipt by him gives rise to the proceeding During such proceeding, the magistrate may take the enquiry upon himself or refer the complaint for investigation by the local police. Therefore, proceedings :ommence on presentation of the private cnmplaint to the iagistrate i v an m e hat he iagist te deer s it is permissible. Li. With :eciard to tre rla,m t the Detit’oners. it ic seen c f a ‘i h i. I € sze b h I.. .rnmic.cic,r•er “Utli the msstanre . bohc’ utf!rer r: tcflfls f le.rs f erst t ai t ‘iir a prai 4 Cd I tc •or W t” .uS ‘opc tjle ,t’n.i( ‘.. ft, ‘ii..-. P’e r Acj.rrdt... : e “• 1€ ., z it a’Sp tm ’ a a I, a 3 a SW * ; 0 10 .1 U a -r ‘a me - s-b ‘0 - ! 3 I;’’W 9=E ‘0 ISa C V S iTt oswfl 0 0 13 magistrate to ensure further proceedings are taken up expeditiously and in accordance with law. sap JUDGE BS/SA* vgh*