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1971 DIGILAW 465 (ALL)

Ram Narain v. Jhakari Shukla

1971-10-25

MOHD.HAMID HUSSAIN

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JUDGMENT Mohd. Hamid Hussain, J. - This is a reference made by the learned Sessions Judge, Gorakhpur, recommending for the setting aside of the impugned order dated April 30, 1970 passed by the magistrate in proceedings relating to Sec. -145 Cr.P.C. 2. The brief facts are that there was a dispute In respect of two agricultural plots Nos. 1642/1 and 1643/3 between Ram Narain Shukla and Gayatri and others. The magistrate felt satisfied that on account of dispute over the agricultural plots there was apprehension of breach of peace between the parties and accordingly on March 17, 1966 the magistrate passed a preliminary order under section 145 (1) Cr.P.C. 3. After the rival parties had put in their written statements, affidavits etc., the magistrate felt himself unable to decide the question of possession and accordingly acting under section 146(1) Cr.P.C the magistrate made a reference to the civil court for a finding about possession of the contesting parties. The Munsif returned a finding that plot No. 1643/1 was in possession of Ram Narain Shukla and plot No. 1643/3 was in possession of Gayatri and another. On receipt of this finding from the Munsiff, the magistrate passed the final order releasing the aforesaid plots in favour of the respective parties as found by the Munsif. The two plots were accordingly handed over to the respective parties by Jhakari Shukla who had been appointed Supardar of the agricultural plots. the applicant applied to the magistrate for issuing a direction to the Supardar to hand over the standing crop and the sale proceeds of the crop which had been raised by the Supardar on the attached plots during the period of attachment. The Magistrate accordingly directed the Station Officer to have the sale proceeds of the crop as well as the crop delivered to Ram Narain Shukla. No compliance with the order of the magistrate was made by the police and accordingly on December 22, L969 the applicant again moved an application to the SDM for the return of the crops as well as the sale proceeds. On this application the magistrate on the same date passed the following order : "S.O. Belipar : Please find herewith an order dated September 29, 1966 regarding release of attached property in respect of plot No. 1643/1 in favour of Ram Narain Shukla 1st party of the case. On this application the magistrate on the same date passed the following order : "S.O. Belipar : Please find herewith an order dated September 29, 1966 regarding release of attached property in respect of plot No. 1643/1 in favour of Ram Narain Shukla 1st party of the case. The order sent to you to release the attached plot and hand over the crops or sale proceeds of the same plot to Sri Ram Narain Shukla from the Sahana concerned Sri Jhakari Shukla r/o village Kanail P. S. Belipar, but nothing has been heard so far. Sri Ram Narain Shukla has appeared and applied for getting back the crops or sale proceeds on August 20, 1969 and again on December 22, 1969. Hence a copy of the order dated September 29, 1966 along with other papers are being sent herewith to take necessary action in the matter atonce accordingly. A compliance report must reach to me within 10 days positively. Sd/- R. C. Verma, S.D.M. Maha. rajganj, Gorakhpur, dated December 22, 1969." The magistrate called for a compliance report in respect of the above order with. in. 10 days. The police submitted a report wherein it was stated that the Supardar had intimated that he had already returned ed the crop and the sale proceeds to the applicant who is by nature a litigious person. The applicant, besides moving the magistrate for the return of the property also filed a complaint against the' Supardar Jhakari Shukla a/S. 406 which had been dismissed by the criminal court on June 26, 1969. Certified copy of the dismissal of the complaint was filed by Jhakari Shukla and on its basis the magistrate by his impugned order dated April 30, 1970 directed the applicant to seek his remedy in a civil court for the return of the sale proceeds and the crop on the ground that it was a matter of accounting. 4. Aggrieved by the aforesaid order, the applicant went up in revision and the learned Sessions judge has made a reference to this court on the ground that the magistrate by the impugned order has not disposed of the application (Paper No. 28 dated December 22, 1969) moved by the applicant. 5. I have heard the applicant who has appeared in person in support of the reference. Sri Radhey Shyam, learned counsel for the opposite party, has appeared to oppose the reference. 5. I have heard the applicant who has appeared in person in support of the reference. Sri Radhey Shyam, learned counsel for the opposite party, has appeared to oppose the reference. 6 The learned counsel has placed reliance on two decisions of this Court reported in 1963 AWR 707 and F AIR 1970 All. 595 for the proposition that the criminal court has no jurisdiction to compel the Supardar to deposit the sale proceeds which is a matter of accounting and to be canvassed only in the civil court. I have persued the application, dated December 22, 1969 moved by t applicant as well as the impugned or and have also looked into the record The contention of the learned coon that the criminal court cannot compel the Supardar to render account is not correct The criminal court cannot realise sale proceeds of the crop from the Supardar but it can certainly demand t Supardar to render accounts for the sal proceeds and if the criminal court finds that the Supardar who is a representative of the court and in whose custody the agricultural plots and the crop standing thereon were given, has not satisfactorily accounted for the crop and sale proceeds then the criminal court can certainly proceed against the Supardar for criminal breach of trust. In the case 1963 AWR 707 relied upon by S, i Radhey Shyam, learned counsel, it was observed that ; "However, I should not be presumed to lay down that in cases of breach of trust by the Supardar, the hands of the magistrate are tied and he cannot take any steps. He cannot take steps for the recovery of the amount due from the Supardar ; but, if it appears that the Supardar has committed criminal breach of trust or any other criminal offence, the magistrate can hand over the case to the police for investigation or can himself make a criminal complaint against t lie Supardar." In the instant case the magistrate has not taken the trouble of enquiring into the allegation of the applicant and has merely passed the impugned order on teeing the judgment in the criminal court filed by the applicant and the report of the police which merely gave out the version of the Supardar. Neither the police nor the magistrate have made any attempt to enquire whether or not there is any evidence in support of the allegation of the applicant or the contention of the Supardar. If the Supardar had returned the crop or the sale proceeds thereof, he would have certainly obtained a receipt from the applicant in token of having acquitted himself of the responsibility with regard to the crops which he had raised on the said plots. In proceedings under section 145 Cr.P.C after the property has been attached, the said property remains in custodia legis of the court and the Supardar being a nominee the court has to render account to the satisfaction of the criminal court before can be absolved from his responsibility. 7. In these circumstances and for the reasons given by the learned Sessions Judge, I accept the reference and set aside the impugned order of the magistrate and remand the case to the court below with the direction that the application of Ram Narain Shukla dated December 22, 1969 will be enquired into by the court and thereafter the court will pass an order in accordance with law. The case on remand will be dealt with by a magistrate other than the magistrate whose order has been set aside. The proceedings will be expedited in the court below.