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1996 DIGILAW 93 (CAL)

Ram Gopal Das v. Avisek Das

1996-03-04

NURE ALAM CHOWDHURY

body1996
JUDGMENT Nure Alam Ahawdhury, J. : This revisional application on behalf of Sri Ram Gopal Das, father of the opposite party No.1 Avisek Das is directed against the ex-parte order dated 29.11.95 passed by Sri A.K. Sinha, learned Executive Magistrate Sealdha, in M.P. Case No. 3376/95 in a proceeding initiated on an application by the opposite party No.1 Avisek Das, son of the petitioner, under s. 94 of the Code of Criminal Procedure, directing issue of notice upon the petitioner, father of the opposite party No.1 before this Court, to appear in person before the Court of the learned Magistrate on 4.1.96 for filing show-cause on the application before him and also directing the Officer-in-Charge Beliaghata Police Station to enquire locally and report by 4.1.96 and to see that no breach of the peace takes place in the meantime and further directing the Officer-in-Charge Beliaghata Police Station to make seizure of the listed machines/listed articles from the suit factory and to hand over the machines/articles in the custody of the petitioner-son on execution of bond. The petitioner-father before this court has also prayed for return of the articles seized from him on 8.12.95 pursuant to the said order. 2. It also appears from the order dated 4.1.96, passed by the learned Magistrate that after the police report of execution of search and seizure, the case is dropped and filed on the prayer of the petitioner son before the learned Magistrate with the direction that the petitioner will produce the seized articles as and when required. 3. 2. It also appears from the order dated 4.1.96, passed by the learned Magistrate that after the police report of execution of search and seizure, the case is dropped and filed on the prayer of the petitioner son before the learned Magistrate with the direction that the petitioner will produce the seized articles as and when required. 3. On perusal of the orders dated 29.11.95 and 4.1.96 it is palpably clear that the application under s. 94 of the Code of Criminal Procedure is absolutely misconceived as there is nothing in the said application that the place is used for the deposit or sale of stolen property or for the deposit, sale or production of any objectionable articles to which this section applies and accordingly the learned Executive Magistrate not only failed to understand the scope of S. 94 of the Code of Criminal Procedure but also failed to understand the consequences of the totality of the orders dated 29.11.95 and 4.1.96 passed by him resulting in absolutely illegal and mala tide actions in the garb of a court order, on suppression of material facts in the application under s. 94 of the Code of Criminal Procedure by the petitioner-son, before the learned Magistrate that his application for injunction in connection with the Title Suit before the Civil Court in respect of the self-same matter failed, clearly indicating mala tide motive on the part of the opposite party No.1 before this Court. 4. Mr. Pradip Ghosh, learned Senior Advocate appearing on behalf of the petitioner, father of the opposite party No.1, submitted that the impugned order dated 29.11.95 as also the order dated 4.1.96 (certified copy produced is directed to be kept with the record) are bad in law and beyond the scope and jurisdiction of an application under s. 94 of the Code of Criminal Procedure and this court has inherent power to order for restoring the machines and articles seized on arbitrary order to the original position wherefrom those were seized. The learned Senior Advocate cited the decisions reported in 1985 Cr.L.J. 143 (Rajiv Bharati vs. The State of West Bengal & Ors.) and (ii) 1993(2) CHN 448 (Somendra Nath Sengupta vs. State of West Bengal, but all these matters relate to application under s. 144 of the Code of Criminal Procedure and do not appear relevant in this case. 5. Mr. 5. Mr. Arup Kumar Chatterjee, learned Advocate appearing on the opposite party No.1, who is the son of the petitioner, submitted that even if the order for search and seizure be bad in law, it will not affect the seizure or proceeding as it is curable under s. 460 (a) of the Code of Criminal Procedure and as such this Court should not interfere with the orders impugned on behalf of the petitioner and the learned Advocate cited in the decisions reported in AIR 1963 SC 822 (Radha Krishan vs. State of Uttar Pradesh) and 1983(2) Crimes 630 (Yadar Ram vs. Ashok Dube & Anr.) but this Court does not find any relevancy of those decisions to the facts and circumstances of this case. 6. In the aforesaid facts and circumstances the application succeeds and the orders dated 29.11.95 and 4.1.96 passed by the learned Executive Magistrate, Sealdah, in M.P. Case No. 3376/95 are set aside and the proceeding is quashed. 7. Sri S. Nag, Sub-Inspector of police attached to Beliaghata Police Station is directed to return the seized article, seized by him on 8.12.95 from inside Lakshmi Pipe Industries situated at 41/H/2, Choulpatty Road, P.S. Beliaghata, Calcutta-10, to the petitioner Ram Gopal Das at the place where form the articles were seized, forthwith and in any event not later than ten days from the date of this order. 8. Let a plain copy of the order counter-signed by the Assistant Registrar (Court) be handed over to the learned Advocates for the parties. Mr. Swapan Kumar Mullick, learned Advocate appearing on behalf of the State is directed to communicate the order to sub-Inspector S. Nag of Beliaghata Police Station forthwith for compliance.