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1977 DIGILAW 524 (MAD)

Jakkarsaheb Rasoolsaheb Sangatras v. State of Karnataka and another

1977-12-05

G.N.SABHAHIT

body1977
Order.- This petition is instituted under section 482, Criminal Procedure Code and is directed against the order dated 22nd April, 1977 passed by the Additional Munsiff and Judicial Magistrate First Class, Jamkhandi, in C.C.No. 744 of 1977 on his file, ordering interim custody of the truck bearing No. MYJ 5074 to the complainant Bhupal Parappa Kagi, on his executing a bond in a sum of Rs. 70,000 with two sureties for the like sum. 2. The relevant facts are these: The complainant and accused in C.C.No. 744 of 1977 on the file of the Judicial Magistrate First Class, Jamkhandi, purchased the truck from its previous owner one Kalal. Thereafter, till 3rd April, 1976, the complainant and accused together ran the said truck and on 3rd April, 1976, the accused handed over the said truck to the exclusive possession of the complainant by entering into an agreement for that purpose and it is the case of the complainant that thereafter, he was in exclusive possession of the truck; but, that the accused, on 10th June, 1976, forcibly took possession of the said truck and that though the complainant: called upon the accused by a notice dated 9th August, 1976 to return the possession of the said truck, the accused did not do so. Accordingly, he instituted a complaint and the police, during enquiry, seized that truck from the possession of the accused on 6th July, 1977. The police have submitted a charge-sheet against the accused for the offence of theft which is pending before the learned Magistrate. 3. During the pendency, both the accused and the complainant gave separate applications to the Court claiming interim custody of the truck. The learned Magistrate, after considering their case, ordered interim custody in favour of the complainant rejecting the application of the accused. Aggrieved by the said order, the accused has come up with the present petition. It is his case that the learned Magistrate ought to have delivered interim custody of the truck to him in preference to the complainant. 4. At the very outset the learned Counsel appearing for the State raised a preliminary objection that the present petition under section 482, Criminal Procedure Code is not maintainable. It is his case that the learned Magistrate ought to have delivered interim custody of the truck to him in preference to the complainant. 4. At the very outset the learned Counsel appearing for the State raised a preliminary objection that the present petition under section 482, Criminal Procedure Code is not maintainable. He submitted that if at all the petitioner was aggrieved, he could have gone up in revision before the Sessions Court against the order of the learned Magistrate and that a petition under section 482, Criminal Procedure Code under the inherent powers of the High Court could not be invoked for the purpose. This submission was resisted by the learned Counsel appearing for the petitioner. He submitted that the power of the High Court under section 482, Criminal Procedure Code, is unfettered for securing the ends of justice. 5. It is true that nothing in the Criminal Procedure Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. But, the point at issue in the present case is whether the petitioner could resort to the provisions of section 482, Criminal Procedure Code when he had the option provided in the Code to go up in revision against the order of the learned Magistrate. 6. The learned Magistrate has passed the order under section 451, Criminal Procedure Code. The charge-sheet was already filed before him when he took up the application for consideration and it is obvious that a revision lies against the order of the Magistrate passed under section 451, Criminal Procedure Code under section 397, Criminal Procedure Code. The Supreme Court of India has pointed out in the case of R.P. Kapur v. State of Punjab1, that the inherent power of the High Court under Criminal Procedure Code cannot be exercised in regard to matters specifically covered by the other provisions of the Code. The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. The Supreme Court further pointed out that it was not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. All the same, the position in law is clear that inherent power of the High [Court cannot be invoked in regard to matters specifically covered by the other provisions of the Code. In the instant case, as pointed by me above, there is a specific provision made under section 397, Criminal Procedure Code to enable the petitioner to go up in revision against the order of the Magistrate. That being so, it is not competent for him to invoke inherent powers of the High Court under section 482, Criminal Procedure Code. The inherent power vested in the High Court could not be used to override the express provisions contained in the Criminal Procedure Code. The inherent powers cannot be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code. That being so, the present petition is not maintainable and is liable to be dismissed, without more. 7. Assuming that the present petition is really in the nature of a revision petition submitted to this Court, then also, there are no grounds on merits to interfere with the order of the learned Magistrate. 8. It is not disputed before me that the present petitioner, who is the accused before the learned Magistrate, entered into an agreement with the complainant by which he handed over the exclusive possession of the truck in favour of the complainant. Having thus put the complainant in exclusive possession, he has forcibly removed the truck from his custody on 10th June, 1976 and inspite of the demand from him, he has not returned the truck to him. It is, under these circumstances, that the complainant instituted the criminal proceedings against the present accused-petitioner. The police have already filed the charge-sheet against the present accused-petitioner. It is, under these circumstances, that the complainant instituted the criminal proceedings against the present accused-petitioner. The police have already filed the charge-sheet against the present accused-petitioner. That being so, the learned Magistrate was perfectly justified on the facts of this case to order interim custody of the truck with the complainant by taking proper security from him. 9. It was submitted before me by the learned Counsel for the petitioner that the complainant, who is the respondent in this petition, agreed to sell the truck to some body else, thus jeopardising the interest of the present accused-petitioner and so he seized the truck from the possession of the complainant-respondent. That is a matter which has to be investigated into during trial by the Criminal Court. So far as the matter as it stood before the learned Magistrate is concerned, it could not be disputed and it is not disputed before me that the complainant was put in exclusive possession of the truck. That being so, the learned Magistrate was justified in ordering interim custody of the truck to the complainant. I find absolutely no grounds to interfere with the order of the learned Magistrate even on merits. 10. Thus, the petition is not maintainable in law and is devoid at merits and it is dismissed.