1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2373 OF 2010 Sambhaji S/o Sudamrao Bhosle ..APPLICANT -VERSUS- Rameshwar S/o Sainaji Bhalekar and another ..RESPONDENTS ......... Mr. S.B. Talekar, advocate for the applicant. Mr. R.M. Deshmukh, advocate for respondent no.1. Mr. B.J. Sonawane, A.P.P. for respondent no.2/State. ........ WITH CRIMINAL APPLICATION NO. 2374 OF 2010 Suresh S/o Vaijnathappa Saraf and another ..APPLICANTS -VERSUS- The State of Maharashtra and another ..RESPONDENTS ......... Mr. S.B. Talekar, advocate for the applicant. Mr. B.J. Sonawane, A.P.P. for respondent no.1/State. Mr. R.M. Deshmukh, advocate for respondent no.2. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 27 th October, 2010. PER COURT : 1. These applications are being finally disposed of, at the stage of admission, by consent of learned Advocate for the parties. 2. Heard learned Advocates for the parties and the 2 learned A.P.P. 3. The respondent-Rameshwar is indisputedly registered owner of the Jeep vehicle bearing registration no. MH 21-3813. He filed private complaint application alleging that his Jeep vehicle was stolen away by one Suresh @ Sudhir Vaijnath Saraf and Datta Londhe on 25th June, 2009 from his agricultural land situated at village Paradgaon. His complaint application was registered vide R.C.C. No. 493 of 2009. At his request, the application was referred to the concerned Police Station Officer, Ghansavangi under Section 156(3) of the Criminal Procedure Code. While the Police investigation was being conducted, the respondent filed another application before the learned Judicial Magistrate (F.C.), Ghansavangi complaining that the Police did not arrest the accused persons named in the complaint nor had seized the Jeep vehicle in question. He alleged that the stolen Jeep vehicle was in possession of the said two accused persons without any authority, and therefore, it shall be seized from them and may be restored to him. The learned Magistrate issued search warrant by granting application. The petitioner preferred the Revision application and challenged the order of the learned Magistrate. His Revision Petition (CRP No. 39/2009) came to be dismissed vide impugned order rendered by the learned Additional Sessions Judge-2, Jalna 3 on 10th June, 2010. Hence, the petitioner challenges both the said orders by way of present Applications. 4. The clinching question involved in this Application is whether the search and seizure of the Jeep vehicle could be ordered by the learned Magistrate under Section 94 of the Criminal Procedure Code. It is important to notice that the police investigation has already been geared up. The police came to know that the petitioner was in possession of the said Jeep vehicle. It appears that the petitioner had executed a `Suprutnama' in favour of the Police Officer, Ghansavangi, whereby, he agreed to produce the vehicle as and when required during the course of investigation. In the said document i.e. `Suprutnama' (Exhibit-Z to the application) the petitioner stated that he had agreed to purchase the said Jeep vehicle from the respondent no.1 by virtue of agreement of sale dated 29th March, 2008. He further narrated that the price of the Jeep vehicle was settled at Rs. 1,90,000/- and given possession of the Jeep vehicle in pursuance of the said agreement. Thus, it is manifest that before issuance of the search warrant, it was well known to the concerned P.S.O. of Ghansavangi Police Station that Jeep vehicle in question was in the custody of the petitioner and that required `Suprutnama' was obtained from him in pursuance to the investigation/enquiry in to the complaint 4 instituted by the petitioner. The custody of the vehicle was not, therefore with said Suresh @ Sudhir Vaijnath Saraf and Datta Londhe as alleged by the respondent no.1 in his application (Exhibit-5) filed in the proceedings of the complaint application i.e. R.C.C. No. 493/2009. 5. So far as the private complaint application filed by the respondent no.1 is concerned, the learned Magistrate (F.C.) did not take cognizance of the offence as alleged but referred the matter for investigation. Obviously, once it was referred under Section 156(3) of the Criminal Procedure Code to the concerned Police for the purposes of investigation, the learned Judicial Magistrate could not have entertained any interim application in the same proceedings because he had parted with the said complaint application. The only course open to him was to await the final report or charge sheet which could have been filed by the concerned Police Station as a result of the investigation. The Section 156(3) empowers the Magistrate to direct investigation into the cognizable offence. The procedure for investigation is laid down in Section 157 of the Criminal Procedure Code. It follows therefore that the manner of investigation falls within the domain of such Investigating Officer after the reference made by the learned Magistrate under Section 156(3) of the Criminal Procedure Code. 5 The learned Magistrate can not, therefore, dictate as to how the investigation shall proceed and what steps the Investigating Officer shall take during the course of investigation. The basic error committed by the learned Magistrate was to entertain the interim application for sending the complaint application under Section 156(3) of the Criminal Procedure Code for the purpose of investigation and that too, when there was no material available to take cognizance of the offence and that it was not so taken by him in pursuance to the complaint by making enquiry under Section 202 of the Criminal Procedure Code. 6. Coming to the merits, it emerges from the record that the petitioner inter-alia claimed to be purchaser of Jeep vehicle in question under the agreement executed by the respondent no.1. The copy of the agreement is also placed on record vide Exh. `A'. The respondent-Rameshwar alleges that the agreement is bogus and fabricated. The petitioner also seeks to rely on the possession receipt dated 29th March, 2008 (Exh. `B'). The receipt is said to have been executed by Datta Mane, who is driver of the respondent-Rameshwar. According to the respondent-Rameshwar, said Datta Mane had no authority to execute the receipt regarding delivery of possession. The learned Advocate for the respondent- Rameshwar points out that said Datta Mane has also filed 6 complaint dated 09.05.2010 before the Police Officer, Ghansavangi alleging forgery of the said documents. The copy of the complaint (Exh. `R-1' to the reply), prima facie, shows that said Datta Mane denied execution of possession receipt. The complaint application of Datta Mane is under investigation. The petitioner has filed the copies of the statements of the attesting witnesses, which supported his case regarding the execution of the agreement of sale. 7. Considering the fact that the P.S.O. came across the material to believe that possession of Jeep vehicle was with the petitioner, and therefore, obtained Suprutnama from him regarding production of the said vehicle as and when required, discloses that he was in custody of the said vehicle. The sale of movable property like Jeep would be deemed as completed on delivery of possession in view of Section 19 of the Sale of Goods Act. It does not require any further formality to be completed. The respondent- Rameshwar alleges that the payments which are shown to have been made by the petitioner in pursuance to the alleged agreement of sale, are not the payment in respect of the said transaction of the Jeep vehicle. He submits that the said payments are towards the repayment of installments towards purchase of tractor vehicle and discount given to him by the Finance Company. There is no 7 documentary evidence to corroborate such kind of averments about the payments being diverted in the context of purchase of tractor vehicle made by him. It is important to notice that the receipt (Exh. `E') clearly shows the name of the petitioner as a person who paid amount of Rs. 45,000/- in the account of Induslnd Bank. Similar payment is supported by the receipt (Exh. `F' and `G'). The driver of the vehicle of respondent-Rameshwar alleged that he even does not know the petitioner. Why such stranger should deposit various amounts in the Bank accounts of the respondent-Rameshwar ? There is no sufficient explanation available from the record. 8. In the background of above facts, I shall examine the scheme of Section 94(1) of the Criminal Procedure Code. The very purpose of Section 94(1) of the Criminal Procedure Code is to authorise the Police Officer to conduct search of specific place, which is reasonably believed to be used for the deposit or sale of stolen property or for deposit, sale or production of any objectionable articles to which the provision applies. Naturally, it is essential before invoking the powers under Section 94(1) that the learned Magistrate must have some material to believe that a particular place is being used for deposit of stolen property. The application filed by the respondent-Rameshwar does not name the 8 petitioner nor it gives description of any place which was required to be searched in order to find out location of the stolen property i.e. Jeep vehicle. The search warrant can not be issued on basis of vague allegations without there being description of the place which purportedly was being used for depositing of stolen articles or property. No omnibus order can be passed directing the search of any place or to seize the property from any person. The impact of the impugned order is that the general search warrant was issued under the directions of the learned Magistrate and the learned Sessions Judge confirmed it, without paying any heed to the requirement of Section 94(1) of the Criminal Procedure Code. Needless to say, both the impugned orders are arbitrary and perverse. 9. In the result, the applications are allowed. The impugned orders are quashed and set aside. (V.R.KINGAONKAR) JUDGE gas/cri2373.10