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1991 DIGILAW 245 (RAJ)

Himta Ram v. The State of Rajasthan

1991-02-27

B.R.ARORA

body1991
JUDGMENT 1. - This miscellaneous petition is directed against the order dated May 28, 1988, passed by the Additional Sessions Judge No. 2, Hanumangarh, by which the learned Additional Sessions Judge allowed the revision petition filed by Mani Ram and order for the custody of the bus to be given to Mani Ram. 2. A bus No. RSC 565 was seized by Police Station, Pilibanga, in a Criminal Case No. 97 of 1986 The State of Rajasthan v. Kalu Khan pending in the Court of the Munsif and Judicial Magistrate, First Class, Suratgarh. After the seizure of the bus, the registered owner of the bus Shri Himta Ram made an application for custody of the bus and the learned Magistrate, by his order dated February 3, 1986, ordered for the custody of the bus in favour of Himta Ram on 'SUPURDGINAMA' with surety. Himta Ram filed surety bond and the custody of the bus was handed over to him. After the delivery of the bus to Himta Ram, Badri Singh, who stood surety, moved an application on June 29, 1987, in the Court of the Munsif and Judicial Magistrate, Suratgarh, mentioning therein that Shri Himtta Ram has sold the bus to Shri Mani Ram and the bus has been seized by the Roadways Magistrate, Bikaner, and is lying in Police Station, Goluwala. He, therefore, prayed that he does not want to stand surety and wants to withdraw the surety. On this application, the learned Magistrate directed the Station House Officer, Police Station, Pilibanga, not to hand over the bus to any other person till the Court so orders. The Station House Officer, Pilibanga, in pursuance to this order of the Judicial Magistrate, Suratgarh, reported to the Court that as the bus was seized by the Roadways Magistrate, Bikaner and the order has been received from the Roadways Magistrate, Bikaner, to give the custody of the bus to Mani Ram but the bus is still lying at the Police Station, Goluwala and has not been released. Thereafter Himta Ram and Mani Ram, both, moved applications for the custody of the bus to them. The learned Magistrate, by his order dated July 3, 1987, ordered for the custody of the bus to be given to Himta Ram. Thereafter Himta Ram and Mani Ram, both, moved applications for the custody of the bus to them. The learned Magistrate, by his order dated July 3, 1987, ordered for the custody of the bus to be given to Himta Ram. The learned Magistrate, while ordering for the custody of the bus in favour of Himta Ram, it appears that, he did not take into consideration the fact that the bus was ordered to be delivered to Mani Ram by the learned Roadwyas Magistrate. Dissatisfied with the order dated July 3, 987, Mani Ram preferred a revision petition before the learned Additional Sessions Judge No. 2, Hanumangarh, who, by his order dated May 28, 1988, allowed the revision petition filed by Mani Ram, set aside the order passed by the learned Munsif and Judicial Magistrate, Suratgarh, and ordered for the delivery of the bus to Mani Ram on certain conditions on furnising sureties in the sum of Rs. 1,30,000/-. It is against this order that the present petition under Section 482 Criminal Procedure Code has been filed by the petitioner Himta Ram. 3. Heard learned Counsel for the petitioner, the learned Public Prosecutor and the learned Counsel for the non petitioner Mani Ram. 4. It is contended by the learned Counsel for the petitioner that the order passed by the learned Magistrate, ordering for the delivery of the bus to Himta Ram, was an interlocutory order and no revision petition against that interlocutory order was maintainable. As the revision petition itself is not maintainable and, therefore the order passed by the learned Additional Sessions Judge No. 2, Hanumangarh, is wholly without Jurisdiction. It has further been submitted by the learned Counsel for the petitioner that earlier the bus was ordered to be given to Himta Ram (petitioner) by the learned Magistrate and if there was any breach of the condition of the SUPURDGINAMA' then the action could have been taken for that and on the application of the Surety, withdrawing his surety, the petitioner could have been asked only to furnish fresh surety, but the delivery of the bus cannot be given to any other person. Lastly it is submitted that the petitioner is the registered owner of the bus in question and, therefore, he is the person best entitled for the delivery of the bus. Lastly it is submitted that the petitioner is the registered owner of the bus in question and, therefore, he is the person best entitled for the delivery of the bus. The learned Public Prosecutor and the learned Counsel for the non petitioner No. 2, on the other hand, have supported the order passed by the learned lower Court. It was argued by the learned Counsel for the non petitioner No. 2 that in another Criminal Proceeding, where the bus was seized by the Roadways Magistrate and an order was passed for the custody of this bus in favour of Mani Ram and against the order, a revision, petition was filed by Himta Ram in the court of the Additional Sessions Judge, Bikaner, where the revision petition was dismissed and against the order of the learned Additional Sessions Judge, Bikaner, dismissing the revision petition filed by Himta Ram, Himta Ram preferred a Misc. petition before this Court, which was, also, dismissed by this Court on October 19, 1987, and the bus was ordered to be delivered to Mani Ram. In these circumstances, when the bus in question has already been ordered to be delivered to Mani Ram by this Court, in this proceeding, the bus cannot be ordered to be delivered to Himta Ram (Petitioner) and the principle of 'res judicata' is applicable in criminal cases even. He has, further, submitted that Mani Ram filed a civil suit in the Court of the Additional District Judge No. 2, Hanumangarh, with respect to the same bus and in that civil suit, the counsel for Himta Ram, on April 24, 1989, gave an undertaking to maintain the status quo so far as the possession of the bus is concerned. The possession of the bus, on that day, was with the non petitioner No. 2 Mani Ram and as the counsel for the petitioner gave an undertaking before the civil Court to maintain the status quo, as such the possession of the bus cannot be given to the petitioner Himta Ram. 5. I have considered the rival submissions made by the learned Counsel for the parties and perused the orders passed by the Courts below and the record of the case. 6. 5. I have considered the rival submissions made by the learned Counsel for the parties and perused the orders passed by the Courts below and the record of the case. 6. It is not in dispute that the bus No. RSC 565 met with an accident and was seized by the Police, Pilibanga on January 27, 1986, which was ordered to be delivered to Himta Ram on February 3, 1986. It is, also, not in dispute that this bus was checked on June 26, 1987, by the Deputy Superintendent, CID (IB), Bikaner, when it was plying on the Highway without any valid permit and at that time the driver was not having the registration etc. and, therefore, this bus was seized in connection with the case under Section 129 of the Motor Vehicles Act and Mani Ram moved an application before the Roadways Magistrate on June 29, 1987 for the delivery of the bus to him. Himta Ram, also, moved an application for the custody of the bus. The learned Roadways Magistrate, by his order dated June 30, 1987, after considering both the applications, ordered for the delivery of the bus to Mani Ram. Against this order dated June 30, 1987, passed by the learned Roadways Magistrate Bikaner, Himta Ram preferred a revision petition before the learned Additional Sessions Judge, Bikaner, who, by his order dated August 4, 1987 dismissed the revision petition filed by the petitioner. Aggrieved with the order dated August 4, 1987, passed by the learned Additional Sessions Judge, Bikaner. Himta Ram preferred a miscellaneous petition before this Court, which was decided by this Court on October 19, 1987, and the miscellaneous petition, filed by the petitioner, was dismissed by this Court with the following observation: "It is not in dispute that the bus was seized from the possession of Mani Ram in connection with an offence under Section 129 of the Motor Vehicles Act because Mani Ram was lifting passengers from a notified route. It is also not in dispute that there was an agreement to sell the bus executed by the petitioner in favour of Marti Ram. It, therefore, appears that in pursuance of the agreement to sell the bus, its possession had been delivered by the petitioner to Mani Ram. In such circumstances Mani Ram was the person best entitled to the possession of bus. It, therefore, appears that in pursuance of the agreement to sell the bus, its possession had been delivered by the petitioner to Mani Ram. In such circumstances Mani Ram was the person best entitled to the possession of bus. No interference is called for in the order of the Court below. The petition is dismissed. Against the order dated October 4, 1987 passed by this Court, it appears that, no appeal was preferred by Himta Ram before the Supreme Court, but an application under Section 482 Criminal Procedure Code was moved for recalling the order dated October 4, 1987, passed by this Court. That application, filed by the petitioner Himta Ram, was dismissed in default and as the petition was dismissed in default and therefore, the petitioner Himta Ram preferred an application under Section 482 Criminal Procedure Code for restoration of that petition under Section 482 Criminal Procedure Code That restoration application came up for consideration before me, which I have decided today and the restoration petition filed by Himta Ram was dismissed by me. The order passed by the learned Magistrate, ordering for delivery of the bus to Himta Ram, thus, stands confirmed by the High Court vide its order dated October, 19, 1987. It is not in dispute that the possession of the bus is with Mani Ram and there is an order passed by this Court, also, for giving the custody of the bus to Mani Ram. The counsel for the petitioner has, also, given an undertaking on April 24, 1989, before the learned Additional District Judge No. 2, Hanumangarh (camp Suratgarh) in a civil suit No. 19 of 1989 Mani Ram v. Himta Ram that he will maintain the status quo so far as the possession of the bus in concerned. In these circumstances I have to see whether any order is required to be passed under Section 482 Criminal Procedure Code The powers under Section 482 Criminal Procedure Code can be invoked only when there is an abuse of the process of the Court or the order is necessary to give effect to any order passed under Section 482 Criminal Procedure Code or otherwise to secure the ends of justice. None of the conditions to interfere, as required under Section 482 Criminal Procedure Code is made out. Two contradictory orders cannot be passed with respect to the delivery of the vehicle. None of the conditions to interfere, as required under Section 482 Criminal Procedure Code is made out. Two contradictory orders cannot be passed with respect to the delivery of the vehicle. When this Court has already ordered for the delivery of the bus No. RSC 565 to Mani Ram and as such this Court cannot pass an order in this petition that it may be delivered to Himta Ram. moreover, The learned Judicial Magistrate, Suratgarh, in its order for the delivery of the bus is question to Himta Ram, has not taken into consideration the order passed by the Roadways Magistrate who had already ordered for the delivery of the bus to Mani Ram. If the learned Judicial Magistrate would have considered the Materials on record then the would not have passed the order in question. It is, no doubt, true that the order passed by the learned Judicial Magistrate, Suratgarh, is an interlocutory order and against that order no revision petition in maintainable, but this Court under its inherent power, vested under Section 482 Criminal Procedure Code can pass an order to secure the ends of justice and to prevent the abuse of the process of the Court. 7. In this view of the matter, I do not find any force in this miscellaneous petition and the same is, therefore, dismissed.Petition Dismissed. *******