Research › Browse › Judgment

Calcutta High Court · body

1983 DIGILAW 119 (CAL)

PREM RATAN VYAS v. ANIL CHATTERJEE

1983-05-03

AMITABHA DUTTA

body1983
AMITABHA DUTT, J. ( 1 ) THIS Revisional application is directed against the Oilier dated 12-6-1982 passed by the learned Sessions Judge Hooghly in Criminal Motion No. 47 of 1982 setting aside the Order No. 10 dated 16. 4. 1982 passed by the Sub-Divisional Executive Magistrate, Serampore in Misc. Case No. 4 of 1982. ( 2 ) ON 27. 2. 1982 the petitioner as agent of a registered firm named M/s Shiblal Narayan Das filed a complaint before the learned Sub Divisional Judicial Magistrate, Serampore alleging that the opposite parties as partners of M/s Pratima Textiles had committed criminal breach of trust in respect of 40 sized cotton beams and yarn entrusted to them for being woven into finished products such as Dhuties, Sharis etc, at pick rate system; The learned Magistrate after examining the complainant and another witness under Section 200 of the Code of Criminal Procedure directed an investigation by the Officer-in-Charge of Serampore PS under Section 202 of the Code. The complainants prayer for issue of search warrant under Section 94 of the Code for recovery of the goods in question was rejected by the learned Magistrate as according to him no Prima facie case had been made out at the stage. ( 3 ) HAVING failed there the petitioner on 23. 2. 1982 applied before the learned Sub Divisional Executive Magistrate Serampore for issue of a search warrant under Sections 93/94 of the Code alleging that opposite parties were trying to misappropriate and had misappropriated some yarn and clothes which were lying at the Premises of M/s Pratima Textiles at 3 Sital Sarkar Lane, Mahesh, PS Serampore. The learned Sub-Divisional Executive Magistrate directed the Inspector-in- Charge of Serampore PS to inquire and report. Thereafter on 16-4-82 having considered the police report and heard the learned advocates of the parties he was prima facie satisfied that the petitioner had made payments to Bauria Cotton Milts for the raw materials in question said to have been entrusted to the opposite parties while the opposite parties could not produce any document in support of their contention that they had made payments for the raw materials on behalf of the petitioner. So the learned Sub Divisional Executive Magistrate directed the police to recover the goods and keep them in the custody of petitioner who was to execute a bond of double the value of the goods that might be recovered. So the learned Sub Divisional Executive Magistrate directed the police to recover the goods and keep them in the custody of petitioner who was to execute a bond of double the value of the goods that might be recovered. The opposite parties moved the learned Sessions Judge, Hooghly against the said order dated 16-4-82. The learned Sessions Judge has set aside that order on the ground that when the learned Sub-Divisional Judicial Magistrate, Serampore had earlier rejected the petitionerts prayer for issue of search warrant under Section 94 of the Code it was not proper for the Sub Divisional Executive Magistrate, Serampore to nullify the order of the competent court by issuing search warrant. He has observed that although the Sub-Divisional Executive Magistrate had concurrent jurisdiction to issue search warrant under Section 94 of the Code the party who had chosen a forum and had failed to get relief from that forum should not be allowed to seek relief from another forum with concurrent jurisdiction without moving the higher, court against the order refusing to grant the relief to him. Being aggrieved by the order of the learned Sessions Judge the petitioner has moved this Court in revision. ( 4 ) HAVING heard the learned advocates of the parties and considered the materials on record find that the decision of the learned Sessions Judge is based on a correct and salutory principle. The petitioner in his application before the learned Sub-Divisional Executive Magistrate, Serampore suppressed the fact that he had earlier applied before the learned Sub Divisional Judicial Magistrate, Serampore for search warrant under Section 94 of the Code and the said application had been rejected by that Court, although that fact was brought to the notice of the learned Sub Divisional Executive Magistrate on behalf of the opposite parties on the date of hearing of the petitioners application by him. The action of the petitioner in moving the learned Sub Divisional Executive Magistrate in this case is clearly an abuse of the process of the Court. Section 94 of the Code does not contemplate that an application under that section can be made before the District Magistrate, Sub Divisional Magistrate and Magistrate of the 1st Class respectively one after another for issue of warrant. Section 94 of the Code does not contemplate that an application under that section can be made before the District Magistrate, Sub Divisional Magistrate and Magistrate of the 1st Class respectively one after another for issue of warrant. The jurisdiction of only one of the three authorities or forums mentioned in that section having co-ordinate jurisdiction can be invoked by the party and in case he feels aggrieved by its order his remedy is to move the higher court in revision. Two authorities or courts with co-ordinate jurisdiction cannot be moved for the same relief. To do so is a gross abuse of the judicial process. In my view, the learned Sessions Judge has rightly set aside the order of the Subdivisional Executive Magistrate, Serampore and there is no ground to interfere with the impugned order. ( 5 ) IT has been stated before this Court that a complaint case bearing No. Cl 331 of 1982 for the alleged commission of the offence of criminal breach of trust of the goods in question is pending against the opposite parties against whom process has been issued by the learned Sub-Divisional Judicial Magistrate, Serampore and that further proceeding in that case has been stayed in revision by this Court. In view of the changed circumstances the Inspector-in-Charge of Serampore P. S. will recover the seized goods from the petitioner if he does not furnish a bond of same amount is favour of that Criminal Court or if the opposite parties obtain an order from the competent court for custody thereof pending the conclusion of the enquiry or trial in the said criminal case. Subject to this direction the Rule is discharged. Let the records be sent down to the Court below as early as possible. Rule discharged.