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1988 DIGILAW 237 (PAT)

Deonandan Rai v. State of Bihar

1988-05-23

S.N.JHA

body1988
JUDGMENT S. N. Jha, J. This application bas been filed for quashing an order dated 16.9.1983 whereby the learned Magi5trate has directed the officer-in-charge, Raghopur Police Station, to take possession of the elephant in question kept in the custody of the petitioner and to produce the same in the court for being released in favour of opposite party no. 4. 2. Before going into the facts of this case 1 may point out here that the names of opposite party nos. 2 and 3 have been deleted vide this Court's order dated 4.1.1984 and now the only contestant is opposite party no. 4 alongwith the State of Bihar as opposite party no. 1. 3. Short facts as stated in this application are that the petitioner is the owner of the female elephant in question which he had purchased some 12 years back in. the S0nepore fair. The elephant was kept at the petitioner's house in village Rustampure and the petitioner had employed two Mahawats who used to look after the elephant and often used to take the said elephant away on the occasion of festivals and marriages on hire. 4. The case of the petitioner is that on 20.7.1982 the Mahawat Dasai Ram took away the elephant on the plea that on the occasion of ldd festival he would be able to earn some money by its hire at" Patna. When the said Mahawat did not return after the Idd festival for a long time, the petitioner went to Patna on 14.8.1982 in search of the Mahawat and the elephant and the petitioner learnt from some persons that the elephant was sold at Patna by the said Mahawat. On the basis of the said information the petitioner lodged an information at Raghopur Police Station on 16.8.1982 which was registered as Raghopur Police Station Case No. 105 of 1982. During the course of investigation the elephant was recovered from one Qumrulla Mahawat who was found taking the elephant across the Nepal Border und the said Qumrulla stated in his statement under section 164 of the Code of Criminal Procedure that the elephant belongs to the petitioner. A copy of the said statement is annexure-1 to the petition. 5. It appears that both the petitioner and opposite party no. A copy of the said statement is annexure-1 to the petition. 5. It appears that both the petitioner and opposite party no. 4 filed applications for release of the elephant in question and the learned Chief Judicial Magistrate after receiving the police report and after hearing the parties vide order dated 8.9.1982 released the elephant in favour of the informant on furnishing security bond of Rs.25,000/- (twenty five thousand) with one surety of the like amount on the condition that he will produce the said elephant as and when required. 6. It appears that the police submitted the final report in the case staling the case to be false and the learned Magistrate by his order dated 7.4.1983 accepted the final report and ordered the release of the elephant to the opposite party. A copy of the said order is Annexure-3. 7. The petitioner being aggrieved by the said order moved this Court in Criminal Revision No. 296 of 1983, which was admitted for final hearing on 14-8-1983 and at the time of final hearing this Court vide order dated 19.3.1983 after some argument allowed the petitioner to withdraw this application prayer of the petitioner because a protest-cum-complaint petition was pending in the court of the learned Magistrate. 8. As indicated above vide order dated 7.4.1983 the learned Magistrate after accepting the final report passed the order that now the elephant in question would be released to Ganga Sah, opposite party no. 4, from whose possession the elephant was seized. From the said order it also appears that later on the Magistrate passed the following order: "It appears that a protest-cum-complaint petition has been filed on behalf of the informant. So register it as a complaint. The complainant may appear for statement on oath on 29.4.1983." The -grievance of the petitioner is that the Magistrate without passing any order on the protest-cum-complaint petition again passed the impugned order on 16.9.1983 on the petition filed on behalf of the opposite party no.4 to release the elephant in question in his favour as ordered on 7. 4. 1983. An argument was advanced on behalf of opposite party no. 4 before the Magistrate that the informant (petitioner) had gone to the High Court in Revision against an order dated 7. 4. 4. 1983. An argument was advanced on behalf of opposite party no. 4 before the Magistrate that the informant (petitioner) had gone to the High Court in Revision against an order dated 7. 4. 1983, which he had withdrawn, the before, the order became final and a fresh order be passed to release the elephant in favour of opposite party no. 4, as ordered earlier on 7. 4. 1983. On the other hand it was urged on behalf of the petitioner that the petitioner withdrew the said revision application because a protest-cum-complaint petition was pending in this court. Therefore, the whole purpose of withdrawing the application was to get some order on the protest cum-complaint petition. 9. The learned counsel appearing on behalf of the petitioner submitted that can a Magistrate, who has accepted the final report submitted by the police, leave the protest-cum-complaint petition as it is, without passing any separate order on it and pass a fresh order in respect of the release of the elephant in question on the basis of the police report. According to him the protest-cum-complaint petition was posted for examination of the complainant on oath on 29.4.1983 but since then no order was passed and in the meantime on the petition filed by opposite party no.4, released the elephant in question by the impugned order without passing any order on the protest-cum-complaint petition which is illegal and fit to be set aside. 10. On the other hand it was contended on behalf of the opposite party no. 4 that the impugned order dated 16. 9. 1983 is not illegal because earlier the elephant in question was released in favour of opposite party no.4 vide order dated 7.4.1983 on the basis of police report which was challenged in revision before this court but as the petitioner withdrew it, the order became final and the Magistrate has rightly released the elephant in question in favour of opposite party no. 4 on account of the fact that the order dated 7.4.1983 become final. It was further argued that assuming that the protest petition is allowed and cognizance is taken in the case on the basis of the same it would be treated as complaint case and the effect of the order dated 7. 4.1983 cannot be nullified by the order made by this court on the protest petition. It was further argued that assuming that the protest petition is allowed and cognizance is taken in the case on the basis of the same it would be treated as complaint case and the effect of the order dated 7. 4.1983 cannot be nullified by the order made by this court on the protest petition. It is an admitted fact that the protest-cum-complaint petition is pending before the court below and no order has been passed on the same. It is well settled that when a protest petition is pending before the court it will be disposed of by the Magistrate as if it is a complaint petition and all the formalities, which are applicable in the case of complaint petition will have to be observed by the magistrate in disposing it of. The Magistrate has to apply his mind and to proceed in accordance with the provisions as laid down in section 190 of the Code of Criminal Procedure. In the instant case the protest petition was registered as a complaint petition and the complainant was directed to appear for statement on oath as far back as 29. 4. 1983 but without disposing of the same the learned Magistrate passed the release order on a petition which was filed on behalf of opposite party no. 4 on 29.8.1983 and disposed of the same by the impugned order. 11. In the back ground of all the facts and circumstances of the case I find that the point urged on behalf of the petitioner is justified. When a protest-cum-complaint' petition was pending in the court, the learned Magistrate ought to have disposed it of before passing of the impugned order. In that view of the matter I quash the order dated 16. 9. 1983 and direct the learned Magistrate to first dispose of the protest-cum-complaint petition and then pass a fresh order either this way or that way regarding the release of the elephant in question in accordance with law. 12. In the result, the application is allowed and the impugned order is 'set aside with the above direction. Application allowed.