IN THE GAUHATI HIGH COURT

(The High Court of Assam, Nagaland, Mizoram and Arunachal

Pradesh)

Crl. Pet. No. 250/2013

Election Commission of India

…. Petitioner.
-Versus-

The State of Nagaland and Another.

…… Respondents.

BEFORE
HON’BLE MR. JUSTICE C.R. SARMA

For the petitioner : Mr. S. Shyam, Advocate,

Mr. A. M. Bora, Advocate,
Mr. A. Dhar, Advocate,
Mr. K.K. Das, Advocate.

For the Respondents : Mr. P. Chudhury, Advocate,

Mr. S. Bhuyan, Advocate.

For the State of Nagaland : Mr. T. Aao, Govt. Advocate.

Date of hearing : 20.02.2014.
Date of delivery of
judgment & order : 16.05.2014.

JUDGMENT & ORDER (CAV)

By filing this application, under Section 482 read with Section 401 of the
Code of Criminal Procedure (for short, Cr.P.C.), the petitioner has challenged
the order, dated 15.03.2013, passed by the learned Sessions Judge, Wokha, in
Criminal Misc. Case No. 2 of 2013 (arising out of G.R. Case No. 19 of 2013).
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(2) The facts of the case, as may be necessary for disposal of this petition,
may, in brief, be stated as follows:

On 18.02.2013, 17th Assam Rifles Wokha Personnel, while conducting

routine checking at Wokha, Kohima (Nagaland) intercepted a Scorpio vehicle,
escorted by three Police vehicles and found some arms and ammunitions
including cash amount of Rs.1,10,00,000/- (Rupees One Crore Ten Lakhs) and
some bottles of liquor in the said vehicle, in which Mr. Imkong L Imchen,
Home Minister, Government of Nagaland and four other persons were
travelling.

(3) Hav. Hoshiar Singh of 17th Assam Rifles, Wokha, by filing a complaint
handed over the said seized articles and the money to S.P. Wokha and
accordingly a criminal case, being WKA PSC/No.0019 of 2013 under Sections
171(E)/177(H)/188 IPC read with Section 25(AA) of Arms Act, R/W Section
44NLTP Act, R/W 77(3) of Representation of Peoples (for short, R.P. Act) Act,
1951 was registered and the said persons with articles aforesaid were taken to
the Wokha Police Station.

(4) On being so handed over, the said recovered articles, which were seized
by the Police, in the Police Station, as per seizure memo and Police launched
investigation into the matter.

(5) The accused persons were remanded to judicial custody, on 20.02.2013,

by the learned Magistrate and they approached the learned Sessions Judge,
Wokha, seeking release on bail. The learned Sessions Judge granted interim
bail till 15.03.2013, on certain condition in favour of all the accused persons.

(6) During the investigation period, the respondent No. 2, in his capacity, as
the President of a political party, namely, Nagaland Peoples Front, filed an
application before the Deputy Commissioner, Wokha seeking custody of the
seized money aforesaid. Though the said petition was pending before the
Deputy Commissioner, Wokha, the respondent No. 2, again, on 05.03.2013,
approached the learned Sessions Judge, Wokha seeking release of the seized
money under Section 451 Cr.P.C. and the learned Sessions Judge, by the
impugned order, dated 15.03.2013, released the seized money in favour of the
respondent No. 2, subject to execution of an undertaking to the effect that the
seized money shall be produced before the Court, if so required.
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(7) Aggrieved by the said order of release of the seized money, the
petitioner, i.e. the Election Commission of India, has come up with this criminal
petition for setting aside the impugned order, dated 15.03.2013, on the ground
that the learned Sessions Judge had no power to release the seized money
under Section 451 Cr.P.C., during the pendency of the investigation and that,
the learned Sessions Judge committed manifest error of jurisdiction by passing
the impugned order. Another ground, taken by the petitioner, is that the seized
money, not being produced before the Court, the learned Sessions Judge had
no jurisdiction to pass order for release the seized money in favour of the
respondent No. 2 and that the observation, made by the learned Sessions
Judge, regarding ownership of the seized money was not lawful.

(8) The respondent No. 2 contested the petitioner’s prayer, by filing an

affidavit-in-opposition and supported the impugned judgment and order,
passed by the learned Sessions Judge. It has also been contended that the
petitioner has no locus standi to challenge the impugned order.

(9) The petitioner, by filing an affidavit-in-reply, has denied the allegation of

suppression of facts and absence of locus-standi.

(10) I have heard the learned Counsel, appearing for both the parties,
perused the criminal petition, the affidavit-in-opposition, the reply to the
affidavit-in-opposition, the impugned order and the report, submitted by the
Superintendent of Police, Wokha.

(11) Mr. S. Shyam, learned Counsel, appearing for the petitioner has
submitted that the learned Sessions Judge, during the investigation of the case,
had no power to release the seized money, in exercise of his jurisdiction under
Section 451 Cr.P.C. and as such, the learned Sessions Judge committed gross
error and illegality by passing the impugned order, without jurisdiction. The
second point of argument, advanced by the learned Counsel for the petitioner,
is that, in view of the provision prescribed by Section 77 of the R.P. Act, 1950,
the Election Commission, being entrusted to conduct free and fair election, is
competent to resist the order directing release of money, seized during the
election period.

The learned Counsel for the petitioner has also submitted , that the
learned Sessions Judge committed gross error and illegality by deciding the
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ownership of the seized money, without trial, resulting much prejudice to the
investigation and that, in view of the provision prescribed by Section 77(3) of
the R.P. Act, 1951, release of the seized money, during the investigation,
without hearing the petitioner was unlawful and illegal.

It has been further contended that the petitioner, being the Election
Commission, entrusted with the responsibility for conducting free and fare
election, is the appropriate authority to contest the impugned order relating to
an offence, committed during the period, when the Code of Conduct for
election was in force. According to the petitioner, this criminal petition has been
preferred purely in public interest and to discharge constitutional obligation, by
taking recourse to the due process of law.

(12) In support of his contention, the learned Counsel for the petitioner
referring to the Case of Sunderbhai Ambalal Desai –Vs.- State of Gujrat,
reported in (2002) 10 SCC 283 and Deputy Commissioner & District
Election Officer, Belloary –Vs.- The State of Karnakata and Others
(Criminal Petition Nos. 8070, 8071,8072,8073 and 8074 of 2010),
decided on 08.09.2010, has submitted that the impugned order, being
passed without jurisdiction, is liable to be set aside.

(13) Refuting the said argument, advanced by the learned Counsel for the
petitioner, Mr. P. Choudhury, learned Counsel, appearing for the respondent
No. 2, has submitted that the State, being the overall authority regarding
maintenance of law and order situation, the learned Sessions Judge rightly
passed the impugned order after hearing the learned Public Prosecutor, who
did not raised any objection, on behalf of the Government, towards the release
of the seized money. It has also been submitted that the Election Commission,
neither being the informant nor complainant, is not entitled to resist the release
of the money, which was seized by the State Police in exercising of its normal
duty.

(14) The learned Counsel argued that there is no sufficient ground for
interfering with the impugned order, in exercise of jurisdiction under Section
482 Cr.P.C, inasmuch as, the impugned order was passed by the learned
Sessions Judge in exercise of lawful jurisdiction vested on him. It has also been
contended that the petitioner, not being the aggrieved person, has no locus-
 5

standi to challenge the impugned order and that the learned Sessions Judge
committed no error by passing the impugned order.

(15) It has also been submitted by Mr. Choudhury, learned Counsel for the
respondent No. 2, that as the case record was pending before the learned
Sessions Judge, in connection with the bail application, made by the accused
persons, no gross error or illegality was committed by the learned Sessions
Judge, by entertaining the application under Section 451 Cr.P.C. and by passing
the impugned order after hearing the learned Public Prosecutor representing
the State.

The learned Counsel for the respondent No. 2 has also submitted a
written argument and relied on the following decisions:

(i) Ganesha –Vs.- Sharanappa and Another, reported in

(2014) SCC 87;

(ii) Sushila Devi –Vs.- State of Rajasthan and Others, reported

in (2014) SCC 269;

(iii) State of Maharastra –Vs.- Salman Salim Khan and

Another, reported in (2004)1 SCC 525;

(iv) Raghubir Singh and others –Vs.- State of Bihar, reported in

(1986) 4 SCC 481; and

(v) State of Punjab –Vs.- Kasturi Lal and Others, reported in

(2004) 12 SCC 195.

(16) Mr. T. Aao, learned Govt. Advocate, has adopted the said argument
advanced by the learned Counsel appearing for the respondent No. 2.

(17) Having heard the learned Counsel, appearing for both the parties and
carefully perusing the impugned orders and the report, dated 10.02.2014,
submitted by the learned District and Sessions Judge, Wokha, Nagaland and
the copy of the report dated 25.03.2014, submitted by the Superintendent of
Police, Wokha, Nagaland, before the Deputy Commissioner, Wokha, Nagaland,
I find that the basic questions raised in this criminal petition are:
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(i) Whether the Election Commission has the ‘locus-standi’ to prefer

the present criminal petition, challenging the impugned order
passed by the learned Sessions Judge?

ii) Whether, in view of the statutory provision prescribed by Sections

451 and 457 Cr.P.C., the learned Sessions Judge has the
jurisdiction to pass the impugned order directing release of the
seized money?

(18) Taking up the first question aforesaid, i.e. locus of the petitioner, it is
found that the seized money and other items like arms and ammunitions,
liquor were recovered by the 17th Assam Rifle Personnel and a complaint letter,
signed by Hav. Hoshiar Singh of the 17th Assam Rifles, was filed with the
Police. Accordingly WKA PSC/No.0019 of 2013 U/S 171(E)/177(H)/188 IPC read
with Section 25(AA) of Arms Act, R/W Section 44 NLTP Act, R/W 77(3) of R.P.
Act, 1951 was registered, the occupants of the vehicles were arrested and
taken to Police station. As indicated in the letter dated 25.03.2013, issued by
the S.P., Wokha, Nagaland, the seized articles were handed over to the Wokha
Police.

(19) From the above, it transpires that the informant/ complainant, in this
case was Hav. Hoshier Singh, an Assam Rifles personnel, on duty and on
receipt of the said complaint, State Police registered a case and launched
investigation into the matter. The Election Commission of India or any of its
authorized officers played no role. In fact, no offence was committed against
the petitioner.

(20) In the case of Deputy Commissioner and District Election Officer,

Bellary –Vs.- State of Karnataka and Others (Criminal Petition No.
8070,8071,8072,8073 and 8074 of 2010, decided on 08.09.201.), relied on by
the learned Counsel for the petitioner, the Karnataka High Court ( circuit Bench
at Dhanwad), held that the Deputy Commissioner and District Election Officer
had locus-standi to resist an application filed by the learned APP under Section
321 Cr.P.C.. In the said case, the petitioner was the informant, who filed the
complaint before the S.H.O., Cowl Bazar P.S. in Bellary city against the
accused persons for the offences under Section 171E of IPC and under Section
3 of the Karnataka Open Spaces ( Prevention of Disfigurement) Act, 1981. The
 7

learned APP filed an application under Section 321 Cr.P.C. seeking Court’s
permission for withdrawal of the cases registered on the basis of the complaint
filed by the petitioner. The trial Court allowed the prayer made by the
petitioner. The revisional Court, while reversing the said order, held that the
petitioner had no locus-standi to oppose the application under Section 321
Cr.P.C.

(21) Aggrieved by the said order, the petitioner approached the High Court,
by filing an application under Section 482 Cr.P.C. The High Court allowed the
petition holding that the petitioner had locus-standi.

(22) In the said case, the petitioner, who was a public officer, holding the
post of the Deputy Commissioner and District Election Officer initiated the
criminal proceeding by filing the FIR, alleging therein, commission of the certain
offences by the accused persons.

(23) Referring to a catena of decisions in the said case, a learned Single

Judge of Karnataka High Court, held that the petitioner, being the informant/
complainant, was the competent persons to oppose the application made u/s
321 Cr.P.C. But in our present case, the Election Commission or its authorized
officers played no role in initiating the proceeding. Hav. Hoshiar Singh, Assam
Rifle personnel, in the course of routine checking, found the seized items
including arms etc. and he lodged the FIR, on the basis of which, Police
registered the same.

(24) The learned Sessions Judge, while considering the petition under Section
451 Cr.P.C., heard the learned Public Prosecutor, representing the State.
Though the case has been registered and charge-sheeted for committing the
offences relating to election i.e. under Sections 171E, 171(H) and u/s 77(3) of
R.P. Act, 1951 (i.e. regarding election expenses) also, the Election Commission
did not play any role in initiating the proceeding and the Commission does not
appear to be an aggrieved party.

In the case of Ganesha –Vs.- Sharanappa and Another, reported in

(2014) SCC 87, the Supreme Court discussed the terms “informant” and
“complainant”. In view of the principles held in the said case, the petitioner
was neither an informant nor a complainant.
 8

The impugned order, having been passed after hearing the State
(learned Public Prosecutor), the Election Commission, which is a stranger to the
proceeding, does not appear to have suffer any prejudice. The facts and
circumstances of the Karnataka case (supra) are different from the case at
hand inasmuch as the petitioner was the informant in the Karnataka case.
Therefore, the said decision does not extend any help to the petitioner. In view
of the above, I have no hesitation in holding that the Election Commission i.e.
the petitioner has no locus-standi.

(25) With regard to the legality and correctness of the impugned order, it
has been contended, on behalf of the petitioner, that the learned Sessions
Judge acted without jurisdiction and that the impugned order is not in
conformity with the statutory provision. Admittedly, the learned Sessions Judge
passed the order, exercising power under Section 451 Cr.P.C.

(26) From the order dated 15.03.2013 and the report of the District &
Sessions Judge ( Vide No. D & SJ/WKA/JUDL/2 dated Wokha, the 10th February,
2014), it is found that the charge-sheet was filed on 11.11.2013. Therefore, the
impugned order, U/S 451 Cr.P.C., was passed during the investigation. From
the impugned order and the contention of the petitioner, it is found that, prior
to approaching the learned Sessions Judge u/s 451 Cr.P.C., the same
petitioner had filed an application, on 21.02.2013, before the Deputy
Commissioner, Wokha seeking release of the seized money and the said
application was pending before the Deputy Commissioner for disposal.

(27) Therefore, it is clearly found that during the pendency of a similar

prayer, made by the same party before one authority, the petitioner had moved
another application before another authority and the second authority i.e. the
learned Sessions Judge, despite being aware of pendency of such an
application, allowed the prayer made in the second application. Entertaining a
second application, if made by the same party, on the same subject matter and
relief, during the pendency of earlier application involving same subject matter
and relief, is contrary to the sound principles of judicial discipline and propriety.
The learned Sessions Judge, either, ought to have referred the second petition
to the Deputy Commissioner or call for a report regarding the status of the
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earlier application. This act on the part of the learned Sessions Judge, being
arbitrary and illegal, can not be treated as an act of judicial application of
mind. Hence, the impugned order, passed on the basis of a second application
during the pendency of the first application on the same subject can not be
maintained.

(28) In order to examine the correctness and legality of the impugned order,
passed by the Sessions Judge, exercising original jurisdiction u/s 451 Cr.P.C.,
the statutory provisions, prescribed under Sections 451 and 453 Cr.P.C., which
read as follows, are to be perused.

“Section 451: Order for custody and disposal of property pending

trail in certain cases:- When any property is produced before any Criminal
Court during any inquiry or trial, the Court may make such order as it thinks fit
for the proper custody of such property pending the conclusion of the inquiry or
trial, and, if the property is subject to speedy and natural decay, or if it is
otherwise expedient so to do, the Court may, after recording such evidence as
it thinks necessary, order it to be sold or otherwise disposed of.

Section 457: Procedure by police upon seizure of property. – (1)

Whenever the seizure of property by any police officer is reported to a
Magistrate under the provisions of this Code, and such property is not produced
before a Criminal Court during an inquiry or trial, the Magistrate may make
such order as he thinks fit respecting the disposal of such property or the
delivery of such property to the person entitled to the possession thereof, or if
such person cannot be ascertained, respecting the custody and production of
such property.

(2) If the person so entitled is known, the Magistrate may order the
property to be delivered to him on such conditions (if any) as the Magistrate
thinks fit and if such person is unknown, the Magistrate may detain it and shall,
in such case, issue a proclamation specifying the articles of which such property
consists, and requiring any person who may have a claim thereto, to appear
before him and establish his claim within six months from the date of such
proclamation.”

(29) A close reading of the said two sections indicate that, for passing an
order u/s 451 Cr.P.C. the seized article must be produced before any criminal
 10

Court, during inquiry or trial. On the other hand, power under Section 457
Cr.P.C. can be exercised by a Magistrate, if the seizure of the property is
reported by Police and such property is not produced before a criminal Court,
during an inquiry or trial. Hence, the provision of Section 451 Cr.P.C. is
applicable in a case where the seized article is produced before the Court,
during inquiry or trial.

(30) In the case of Sunderbhai Ambalal Desai (supra), the Supreme Court
has laid down the guidelines and principles regarding disposal of property under
Sections 451 and 457 Cr.P.C. The Supreme Court observed that the power u/s
451 Cr.P.C. should be exercised expeditiously and judiciously.

As observed by the Supreme Court, the object of disposal of seized

property is that the Court, having control either direct or indirect, should pass
order regarding disposal.

Section 451 Cr.P.C. also provides that, for exercising the power u/s 451
Cr.P.C., the property must be produced before the Court, passing such order.

(31) In the present case, as the charge-sheet was not submitted and the
case was also not committed to the Court of Sessions, at the time of passing
the impugned order, the matter, regarding seized property, in fact, was
pending before the learned Magistrate.

The petitioner i.e. respondent No. 2 had filed the application u/s 451
Cr.P.C. directly before the learned Sessions Judge. The impugned order does
not reveal that the seized money, along with other seized items, were produced
before the learned Sessions Judge. It can be understood that in view of
pendency of investigation, there was no scope to produce the seized money
before the Sessions Court. The report, dated 25.03.2013, submitted by the
S.P., Wokha also indicates that the seized articles were handed over to Wokha
Police. The said report does not indicate that the seized property was produced
before the learned Sessions Judge. Therefore, from the above, it is found that
the seized money was not produced before the Court and the learned Sessions
Judge had no control over the seized money, on the date of passing the
impugned order.
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(32) In the case of Sunderbhai Ambalal Desai (supra) the Supreme Court
observed that the power u/s 451 Cr.P.C. is to be exercised by a Magistrate.

(33) The scope of the high with regard to interference with an order, in
exercise of powers u/s 482 Cr.P.C. has been settled by the Apex Court in a
catena of decisions. In the case of State of Maharastra –Vs.- Salman Salim
Khan and Another, reported in (2004)1 SCC 525, the Supreme Court, while
discussing of the scope of interference under Section 482 Cr.P.C., held that the
trial Court at appropriate stage of the trial can decide arguments regarding
framing of proper charge and sufficiency of evidence. It has also been held that
the High Court can not examine the truthfulness, the sufficiency and
acceptability of material produced at the time of framing charge.

(34) In the case of Raghubir Singh and others –Vs.- State of Bihar,
reported in (1986) 4 SCC 481, the Supreme Court held that it can not convert
itself into the Court of Magistrate or a Special Judge to consider the evidence
and justification regarding, framing of charge.

(35) In the case of Sushila Devi –Vs.- State of Rajasthan and Others,
reported in (2014) SCC 269, the Supreme Court held that the monitoring of a
case by Supreme Court will cease on submission of charge-sheet before the
competent Court.

(36) From the above discussion, it can be concluded that, due to non
production of the seized money, before the learned Sessions Judge, the learned
Sessions Judge had no jurisdiction to release the seized money, during the
investigation period, that too during the pendency of another (first) application.
The impugned order is found to be not in conformity with the statutory
provision, prescribed u/s 451 Cr.P.C.

(37) Therefore, in the light of the above discussions, the impugned order,
passed by the learned Sessions Judge, can not stand the test of law. Hence,
the order, not being in conformity with the statutory provision, can not be
maintained. From the above, it is clearly found that the learned Sessions Judge
acted without jurisdiction in passing the impugned order and as such, the said
unlawful order can not be allowed to continue.
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(38) In the case of State of Punjab –Vs.- Kasturi Lal and Others,
reported in (2004) 12 SCC 195, the Supreme Court, referring to the case of
Bhajanlal [ 1992 (1) SCC 335] laid down the scope and principles of
interference, by Court in exercise of power under Section 482 Cr.P.C. In view of
the decision held in the said case, an order, if manifestly appears to be against
the statutory provision or hit by any legal bar, then the jurisdiction u/s 482
Cr.P.C. can be invoked to rectify the illegality. In the case of Bhajanlal [
1992 (1) SCC 335] also it has been held that the order passed against
expressed legal bar, is liable to be interfered with u/s 482 Cr.P.C.

(39) In view of the above principles provided by the Supreme Court, there is
no difficulty in understanding that the High Court, in exercise of jurisdiction u/s
482 Cr.P.C. can exercise its power of interference to prevent unauthorized
exercise of power violating the statutory provision resulting miscarriage of
justice and abuse of process.

Law is well settled that if any procedure is provided by statute or Rule to

do certain things, the same should be done in the prescribed manner. Any
deviation from the statutory provision is arbitrary and such act is liable to be
set aside.

(40) As observed above, though this petition, at the instance of the

petitioner, is found to be not maintainable, the illegality in passing the
impugned order, having been brought to the notice of this Court, I don’t find it
just and proper to ignore the same and allow continuance of the said unlawful
order, passed without jurisdiction.

Therefore, though the petitioner has no locus to challenge the impugned

order, in view of the above illegality, this Court, in exercise of its inherent
jurisdiction under Section 482 Cr.P.C. finds it just and proper to rectify the said
illegality by interfering with the impugned order.

(41) From the report, submitted by the learned Sessions Judge, Wokha, it is
found that, though the case was committed to the Court of Sessions, the same
has been remanded to the Court of the learned Judicial Magistrate 1st Class for
trial. Therefore, the case is pending for trial before the learned Judicial
Magistrate 1st Class.
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(42) In view of what has been discussed above, the impugned order, dated
15.03.2013, aforesaid is set aside. The respondent No. 2 is directed to produce
the seized money before the trial Court within one month from this date and on
such production, the trial Court shall pass necessary order regarding custody of
the seized money, as per law.

(43) With the above this petition is disposed of.

JUDGE

Kishor