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1984 DIGILAW 311 (ALL)

KAMLESH KUMAR v. GIRISH KAPOOR

1984-04-12

I.P.SINGH

body1984
I. P. SIUGH, J. ( 1 ) KAMLESH Kumar applicant has moved this application under Section 482, Criminal Procedure Code to get order dated 10. 10. 83 passed by IX Additional Sessions Judge, Moradabad quashed. ( 2 ) THE brief facts arc that Girish Kapoor O. P. No. 1 representing himself to be the Manager of Mis Angles Films, Moti Cinema, Chandni Chowk, Delhi lodged an F. I. R. at P. S. Bilari, Moradabad that a print of film Nasib belonging to Mis Angles Films was stolen from office in New Delhi on 4. 6. 83 and its print Was being run in Bilari. It was in pursuance of this F. I. R. that print of film Nasib running in Anil Touring Talkies, Bilari was seized by the police on 5. 6 83. The present applicant is the Manager of the said Touring Talkies. Thus counter claims to the possession of the said print of film Nasib arose. Both the parties applied under Section 457, Criminal Procedure Code in the Court of Judicial Magistrate, Moradabad for the delivery of the same. The learned Magistrate after considering the evidence led by the parties before him, ordered on 16. 9. 83 that the said print of the film be given in the Sapurdagi of Kamlesh Kumar applicant on his executing a personal bond of Rs. 25,000/-and one surety of the like amount with a condition that he would maintain the said print of the film in the same condition and would produce it in the court when called upon. ( 3 ) THE applicants contention is that in pursuance of the said order of the learned Magistrate he executed the necessary bond on 16. 9. 83 and obtained the said print on that very date. ( 4 ) GIRISH Kapoor, O. P. No. 1 filed Criminal Revision No. 239 of 1983 which came before IX Additional Sessions Judge, Moradabad for disposal. In the revision the revisionist moved application dated 7. 10 83 accompanied by an affidavit praying that the said film be kept in sealed cover in Sadar Malkhana, Moradabad during the pendency of the revision so that the same may not be destroyed or disposed of by the Supurdgar Kamlesh Kumar (O. P. in the said revision ). ( 5 ) THE application dated 7. 10 83 accompanied by an affidavit praying that the said film be kept in sealed cover in Sadar Malkhana, Moradabad during the pendency of the revision so that the same may not be destroyed or disposed of by the Supurdgar Kamlesh Kumar (O. P. in the said revision ). ( 5 ) THE application dated 7. 1083 was disposed by the following impugned order: The property in suit is the print of film Naseeb which was given in the custody of Supardar on undertaking that he shall keep the said print in the state as it was delivered to him. In my opinion, the property in question be protected because it is the case property and it may be exhibited at the time of evidence. The prayer of the revisionist appears genuine. Order The property in question, i. e. print of film Naseeb be taken back from the possession of the opp. party Kamlesh Kumar, Manager-cum-proprietor Anil Touring Talkies, Bilari and the same be kept in sealed cover in Sadar Malkhana, Moradabad, pending disposal of the revision. S. R. O. Bilari is directed to comply with the order. Copy of the order be sent for compliances. Report by 14. 10. 1983. It is against this order that the present application under Section 482, Criminal Procedure Code has been moved. ( 6 ) THE above order was passed in revisional jurisdiction of the Sessions Judge. Obviously that jurisdiction was exercised under Section 397, Criminal Procedure Code. Under its provisions the Sessions Judge could pass an interlocutory order by directing that the execution of any sentence or order be suspended. . . It is, therefore, clear that in a revision, the Sessions Judge, could, during the pendency of the revision suspend either sentence or order against which the revision has been filed. In the present case there is no question of any sentence. There was only the order in question against which revision was filed. At best the said, order could only be suspended during the pendency of the revision. ( 7 ) THE question of suspending the order would only arise if it was still to be executed. If the order had already come into operation, there remained nothing to be suspended. There was only the order in question against which revision was filed. At best the said, order could only be suspended during the pendency of the revision. ( 7 ) THE question of suspending the order would only arise if it was still to be executed. If the order had already come into operation, there remained nothing to be suspended. In the present case it is undisputed fact that in pursuance of the order of the learned Magistrate, applicant Kamlesh Kumar had already executed the necessary bonds on the same date and had taken delivery of the said print of the film Naseeb. Accordingly there remained nothing which could be suspended. ( 8 ) THE impugned order which directs that the film be kept in sealed cover in Sadar Malkhana after taking back from the possession of Kamlesh Kumar applicant, during the pendency of the revision, to my mind is certainly beyond jurisdiction of the learned Sessions Judge exercising revisional power under Section 397, Criminal Procedure Code. The case of Ram Autar v. Ydayvir Singh and others provides an illustration on somewhat parallel facts in support of my above view. In the above case proceedings under Section 145 Criminal Procedure Code were going on in the court of Magistrate. During the course of the proceedings the learned Magistrate passed an order directing that the property in dispute be attached. Against that order of attachment a revision was filed in the Court of Sessions Judge. Aligarh. The learned Sessions Judge passed an order staying attachment. But before the order could be communicated to the S. O. of the police station concerned the attachment had taken place. When this fact was, brought to the notice of the Sessions Judge he passed an order that the attachment be released in favour of the person from whose possession the property had been attached. It was held that the order passed by the Sessions Judge relating to attachment made in proceedings under Section 145, Criminal Procedure Code against the applicant in revision was without jurisdiction. ( 9 ) IN my view, therefore, the impugned order being without jurisdiction has to be struck down because it is a nullity, being ultra vires and is nothing but an abuse of the process of the court. Besides, interest of justice also requires that this order should not be allowed to stand. ( 9 ) IN my view, therefore, the impugned order being without jurisdiction has to be struck down because it is a nullity, being ultra vires and is nothing but an abuse of the process of the court. Besides, interest of justice also requires that this order should not be allowed to stand. ( 10 ) THE application is, therefore, allowed. The impugned order dated 10. 10. 83 passed by the IX Additional Sessions Judge, Moradabad in Criminal Revision No. 239 of 1983 is quashed. .