Sahiruddin Laskar v. Aziruddin Laskar — 1996 DIGILAW 166 (GAU)

This revision petition is so preferred under section 397 read with section 482 CrPC against the judgment and order dated 18.12.91 passed by the learned Sessions Judge, Cachar, Silchar in Criminal Appeal No.8 (1) of 1991 by virtue of which the learned Sessions Judge set aside the judgment and order of the learned CJM, Silchar, Cachar passed in GRNo.663 of 1989 directing to make separate enquiry under section 452 CrPC with regard to the disposal of the property i.e., the elephant 'Lakhimala' by name at the conclusion of the trial. 2. Mr. N. Choudhury, the learned counsel for the petitioner and Mr. HRA Chaudhury, the learned counsel for the opposite party are heard at length. 3. Mr. Choudhury, the learned counsel for the petitioner giving short history of the case for better appreciation of the case, has submitted that the present petitioner is the owner of the elephant named above so found missing from the work site which was so located at the fag end of the year 1988 near Maruachera in the district of Cachar with one Mayub Ali for which though the grazing permit was in the name of the petitioner but it was wrongly made over by Shri Ali to one Aziruddin. The said elephant later on was produced before the DFO through one Abdul Rahman Majumdar and on 6.2.89 the leanred CJM granted interim custody of the said elephant to Abdul Rahman Majumdar against which Criminal Revision No. 14 (1) of 1989 was preferred before the learned Sessions Judge and the learned Sessions Judge by his order dated 8.9.89 set aside the order of the learned CJM dated 6.2.89, granting interim custody of the said elephant to the present petitioner. It is also submitted by Mr. Choudhury that criminal revisions were preferred before this Court vide Criminal Revision No.587 of 1989 and Criminal Revision No.436 of 1989 one preferred by Abdul Rahman Majumdar and the other by the opposite party of the present case Aziruddin Laskar and this Court was pleased to uphold the interim custody of the elephant so given to this petitioner also observing that the dispute was of civil nature and hence the ownership matter is to be decided by the civil Court at appropriate time. It is also pointed out that in compliance with the order of this Court, Abdul Rahman Majumdar was directed as to handover the elephant to the present petitioner but in meanwhile the main case GR 663/1989 got disposed of on 13.2.91, a copy of which is filed and marked as Annexure 1 in which the accused was so discharged and the learned trial Court while discharging the accused held with regard to the possession of the elephant as to continue with the present petitioner as the question of ownership of the elephant was only possible to be decided by the civil Court and therefore the said elephant as per the direction of the CJM dated 13.2.91 was allowed to remain with Sahiruddin Laskar the present petitioner and the parties were directed to seek relief in the competent civil Court competent to adjudicate and decide the ownership of the said elephant. The further case of the petitioner is that as per the above direction, the petitioner filed Title Suit No. 17 of 1991 before the competent civil Court for deciding the ownership of the elephant in question in his favour in connection with which Misc Case 18 of 1991 is also pending and in which the opposite party as defendant has also appeared. Lastly, it is pointed out that against the said order of the CJM dated 13.2.91 two revision petitions were filed one by this petitioner being aggrieved by the said order by which the accused got discharged and also by the opposite party of the present revision petition claiming himself to be aggrieved by the other part of the order dated 13.2.91 by which the possession over the elephant was ordered to be continued in the hands of the present petitioner till the matter is finally decided by the competent civil Court. The opposite party put a case before the learned Sessions Judge in Case No.8 (1) of 1991 which was a criminal appeal that after the conclusion of the trial when the accused was discharged, it was incumbent on the part of the learned CJM as to hold fresh enquiry with regard to the possession of the property under section 452 CrPC which was not done. The learned Sessions Judge vide the impugned order dated 18.12.91 allowed the prayer of the opposite party, set aside the order of the CJM dated 13.2.91 to the extent of the petitioner being allowed to continue the possession to the matter with regard to the ownership is decided by the competent Court and remanded the matter back to the CJM as to hold enquiry under section 452 CrPC with regard to the disposal of the property, i.e., the elephant. Being aggrieved by the said order of the Sessions Judge dated 18.12.91 this revision is preferred on the grounds mentioned in the petition which are all pressed into service with a prayer that in the instant case the learned CJM has assigned reasons for not holding fresh enquiry under section 452 CrPC though he was very much conscious of the provisions of the said section as reflected in the operative portion of the said order. On two grounds the learned CJM did not find it necessary as to hold such enquiry - firstly because of the fact that the said issue with regard to the possession of the elephant was discussed at length by the learned Sessions Judge in the Criminal Revision No.14 (1) of 1989 disposed of on 8.9.89 and also in the background of the order so passed by the High Court in Criminal Revision 587 of 1989 dated 15.3.90 giving the details with regard to the matter of possession and ownership finally to be decided by the competent civil Court and interim possession till such disposal was to be continued with the present petitioner and in this connection the order of this Court passed is referred and particularly its paragraphs 10 and 12 are read. That being the position, hence on behalf of the petitioner it is argued that the learned Sessions Judge has rather erred while passing orders for fresh enquiry under section 452 CrPC in his order dated 18.12.91 which be thus set aside particularly when already Title Suit 17 of 1991 is pending for disposal before the Assistant District Judge, Cachar, Silchar for deciding the ownership of the elephant in question. In support of this contention the learned counsel claimed himself to be fortified by two of the reported cases 1979 Crl LJ 428 (Govindachari vs. State & another) and 1990 Crl LJ 1347 (Meena Ram vs. State of Himachal Pradesh & another). 4. Mr. In support of this contention the learned counsel claimed himself to be fortified by two of the reported cases 1979 Crl LJ 428 (Govindachari vs. State & another) and 1990 Crl LJ 1347 (Meena Ram vs. State of Himachal Pradesh & another). 4. Mr. HRA Chaudhury, the learned counsel for the opposite party, on the other hand, submits that there is nothing wrong in the impugned order of the learned Sessions Judge dated 18.12.91 because as per the provisions of law particularly contained under section 452 CrPC after the conclusion of the trial, the Presiding Officer is to hold fresh enquiry with regard to the disposal of the property which was not so done here and thus the impugned order does not require any interference. It is pointed out that when the title suit is pending for disposal as to decide the question of ownership, the present opposite party is entitled to the possession of the elephant in question for the present till the matter with regard to the ownership is finally decided by the competent civil Court and since the order dated 13.2.91 passed by the CJM in GR Case 663/1989 is critic the learned Sessions Judge was perfectly justified in setting aside that part of the order granting relief to the opposite party which thus does not warrant any interference. As regards the reported cases cited, Mr. HRA Chaudhury, learned counsel for the opposite party has further pointed out that they can be distinguished in the background of the facts and circumstances of the present case. Lastly, it is submitted that if in course of further enquiry with regard to the disposal of the property in question it comes in light that the possession be given to the present petitioner the petitioner shall be at liberty as to continue the possession but the parties be not deprived 01 the fresh enquiry the provision of which is very much incorporated in the body of section 452 CrPC. That being the position it is submitted that since this revision petition has got no merit, the same be dismissed. 5. After hearing both the sides lawyers, I have carefully gone through the orders so passed by the learned Sessions Judge in Criminal Revision No.14 (1) of 1989 on 8.9.91 and orders so passed by this Court in Criminal Revision on 15.3.90 are also looked into. 5. After hearing both the sides lawyers, I have carefully gone through the orders so passed by the learned Sessions Judge in Criminal Revision No.14 (1) of 1989 on 8.9.91 and orders so passed by this Court in Criminal Revision on 15.3.90 are also looked into. As regards the interim custody of the elephant the same was given in 1989 by the Sessions Judge to the present petitioner and this order it transpires was upheld by the High Court on 15.3.90. In his order passed in Criminal Revision 14 (1) of 1989 the learned Sessions Judge has held that the petitioner was entitled to have the interim custody which was upheld by the order of this Court dated 15.3.90 in Criminal Revision Nos.436 and 537 of 1989. 6. Last but one paragraph of the order of the learned Sessions Judge passed on 8.9.91 in Criminal Revision 14 (1) of 1989 in this point runs as under : "... The grazing permit No. 142/14165 in the name of the petitioner Sahir Uddin Laskar shows that the description of the elephant is given there as Laxmimala and the permit is given to the petitioner Sahir Uddin Laskar. It appears from the documents as discussed above that Adbur Rahman the opposite party did not claim the elephant at any stage. Rather, the petitioner No.l was all along claiming the missing elephant to be Laxmimala and it belongs to him and the grazing permit was also issued in his name. That being so, the order of the learned Chief Judicial Magistrate giving zimma of the elephant to Abdur Rahman Mazumdar is liable to be set aside as the documents submitted and discussed as referred to clearly shows that the elephant Laxmimala belongs to petitioner Sahir Uddin Laskar." 7. So is the case in the order of this Court dated 15.3.90 when this Court was pleased to uphold the order dated 8.9.89 of the learned Sessions Judge. Paragraph 12 of this Court's order so passed in Criminal Revision No.587 of 1989 (Hon'ble Phukan, J) runs as under : "Therefore, I am of the opinion that Abdul Rahman Mazumdar who is the petitioner in Criminal Revision No.436 of 1989 has failed to make out a case for getting zimma of the elephant for the reasons stated above. Paragraph 12 of this Court's order so passed in Criminal Revision No.587 of 1989 (Hon'ble Phukan, J) runs as under : "Therefore, I am of the opinion that Abdul Rahman Mazumdar who is the petitioner in Criminal Revision No.436 of 1989 has failed to make out a case for getting zimma of the elephant for the reasons stated above. I may reiterate that he is claiming zimma of the elephant only for the purpose of handing it over to the owner and this cannot be the basis of his claim." 8. If further comes in light after going through the order of the learned CJM dated 13.2.91 that after conclusion of the trial because of the accused being discharged he was very much conscious of the provisions of law contained in section 452 CrPC. That being the position, he is specific in detailing in the operative portion of his order that in his opinion it would be unnecessary to hold further enquiry regarding the possession of the elephant particularly when this issue was after scrutiny decided in favour of the petitioner by the Sessions Judge on 8.9.89 and by this Court on 15.3.90. The learned CJM has also held that the question of ownership of the elephant can only be decided by the civil Court and hence it is concluded that in conformity with the above two orders passed in Criminal Revision No. 14 (1) of 1989 on 8.9.89 and in Criminal Revision Nos.436 and 537 of 1989 passed by this Court on 15.3.90 the elephant was directed to be kept in the custody of Sahir Uddin till the matter is decided by the competent civil Court. It is also concluded in his order dated 13.2.91 that the parties would seek relief in the competent civil Court. The petitioner it further transpires that in that background immediately thereafter filed Title Suit 17 of 1991 in the Court of the Assistant District Judge which is not denied by the opposite party. It is also concluded in his order dated 13.2.91 that the parties would seek relief in the competent civil Court. The petitioner it further transpires that in that background immediately thereafter filed Title Suit 17 of 1991 in the Court of the Assistant District Judge which is not denied by the opposite party. The question thus for decision is as to whether in the instant case in the background of the facts and circumstances discussed above it was incumbent on the part of the C JM as to hold fresh enquiry with regard to the disposal of the property after the conclusion of the trial or his order so passed on 13.2.91 which was under challenge before the learned Sessions Judge and which is so set aside by the learned Sessions Judge on 18.12.91 requires any interference ? 9. In my opinion, I find that when such occasion arises with regard to holding fresh enquiry for the disposal of the property under section 452 CrPC, the trial Court is not bound to hold elaborate enquiry before passing any order under section 452 CrPC. In the best interest of the property as well as the parties involved, the property need be delivered only to a person entitled for such possession because in no way the ownership of the property can be decided after holding enquiry by the criminal Court which is the jurisdiction of the competent civil Court only. Any order so passed under section 452 CrPC thus can well be said to be a tentative arrangement made by the criminal Court. The title to the property and right to possess the same are only to be determined by the competent civil Court. Any order so passed under section 452 CrPC thus can well be said to be a tentative arrangement made by the criminal Court. The title to the property and right to possess the same are only to be determined by the competent civil Court. Thus since there is no need in such circumstances as to hold elaborate enquiry by examining witnesses the order so passed by the learned CJM on 13.2.91 directing the possession of the elephant in question as to continue with the petitioner particularly in the background of the two orders so passed on the point of entitlement for possession is elaborately discussed by the learned Sessions Judge on 8.9.89 in Criminal Revision No.14 (1) of 1989 and by this Court on 15.3.90 in Criminal Revision Nos.436 and 537 of 1989, in my considered opinion, the learned CJM was perfectly justified in passing such orders directing the parties as to get the matter decided by the competent civil Court for which a Title Suit 17 of 1991 is so pending. Thus, I find that the argument so advanced on behalf of the petitioner by Shri N. Choudhury by citing two of the reported cases as well founded and the learned Sessions Judge has thus erred by passing the order dated 18.12.91 in the background of the facts and circumstances of the case for holding fresh enquiry under section 452 CrPC in Criminal Appeal No.8 of 1991 which is under challenge. Taking that view the impugned order dated 18.12.91 of the learned Sessions Judge as to hold fresh enquiry under section 452 CrPC is this hereby set aside and the order of ' the learned CJM dated 13.2.91 passed on this point in GR Case 663 of 1989 is upheld and restored. This criminal revision petition is allowed.