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1998 DIGILAW 797 (PAT)

Nirgun Tiwary v. State Of Bihar

1998-11-17

S.N.JHA

body1998
Judgment S.N.Jha, J. 1. The dispute in this miscellaneous application under Section 482 of the Code of Criminal Procedure relates to a tractor bearing registration No. BRD-3385. From the contents of the application, the documents and the impugned order annexed thereto as well as the submissions made at the bar it appears that the tractor originally belonged to one Alakhdeo Singh. According to the petitioner, Alakhdeo Singh sold the tractor to him on 30.6.1980 whereafter he took steps for transfer of ownership. The ownership was transferred and necessary endorsement to that effect was made in the certificate of registration on 5.11.1983. The petitioner has been paying taxes thereafter. In the meantime, opposite party No. 2 Shyam Narayan Singh, who is nephew of the said Alakhdeo Singh filed complaint before the Magistrate alleging theft of the said tractor. In course of time the Police to which the complaint was referred under Section 116 of the Code of Criminal Procedure, submitted the charge-sheet and Alakhdeo Singh was put on trial. It may be mentioned that the petitioner herein does not figure as an accused in that case. 2. It appears that Shyam Narayan Singh filed an application for release of the tractor in his favour before the trial Court. The application was rejected on 21.8.1982. Against that order he moved the Sessions Judge, Siwan in criminal revision No. 343/82. The 5th Additional Sessions Judge, Siwan who heard the case on transfer, by his order dated 21.9.1983 allowed the prayer for release. The said Alakhdeo Singh moved this Court in criminal revision No. 831/83. On 25.11.1986 the revision was dismissed. Thereafter on 4.1.1997 the trial Court passed an order to seize the tractor so that the aforesaid order of the Additional Sessions Judge dated 21.9.1983 could be carried out. The present impugned order dated 21.2.1997 has been passed in continuation of the earlier order dated 4.1.1997. It may be mentioned here that apart from issuing direction for release of the tractor in favour of opposite party No. 2 the Court below has also issued warrant of arrest against the petitioner for being in possession of stolen property under Section 201 of the Penal Code. 3. Mr. It may be mentioned here that apart from issuing direction for release of the tractor in favour of opposite party No. 2 the Court below has also issued warrant of arrest against the petitioner for being in possession of stolen property under Section 201 of the Penal Code. 3. Mr. Shashi Shekhar Dwivedi, learned Counsel for the petitioner submitted that both the directions for release of the tractor as well as the arrest of the petitioner are illegal for the simple reason that the tractor was never seized nor any prosecution with respect to the offence under Section 201, IPC, has been lodged against the petitioner. He submitted as regards the first part that unless the property is seized and seizure is reported to the Court as contemplated by Section 457, Cr PC, the Court has no jurisdiction to pass an order of release. 4. Counsel for the opposite party No. 2 submitted that by reason of the dismissal of the criminal revision No. 831/83 (supra) the order of the 5th Additional Sessions Judge dated 21.9.1983 passed in criminal revision No. 343/82 has become final and at this stage it is not open to the petitioner to challenge the correctness of the present impugned order which has been passed in order to give effect of the earlier order of the Additional Sessions Judge. He also submitted that from the impugned order itself it would appear that order for seizure of the tractor was passed on 4.1.1997 which has been reiterated in the present order as well. 5. Mr. Dwivedi, learned Counsel for the petitioner pointed out that criminal revision No. 831/83 was dismissed by this Court for default and, therefore, it could not be said that there was any decision by the Court on merit of this case. He pointed out that the question as to whether the property in question has been seized or not goes to the root of the mater and, therefore, if it is found that in the present case there has been no seizure in the eyes of law, this Court should not reject the petition of the petitioner merely because the revision allegedly preferred by the petitioner was dismissed by this Court. In this connection, he pointed out that the fact of the matter is that the petitioner was not a party to the said Criminal Revision. In this connection, he pointed out that the fact of the matter is that the petitioner was not a party to the said Criminal Revision. He stated that although his name figured as co-petitioner he did not execute vakalat-nama. He urged that inasmuch as the petitioner was not a party to the criminal case instituted by opposite party No. 2 there was no occasion for him to be impleaded as co-petitioner. I do not want to go into the controversy. It is not necessary, in my opinion, for disposal of the case to make any enquiry as to whether the petitioner herein figured as a co-petitioner in criminal revision No. 831/83. Earlier order of the Additional Sessions Judge, dated 21.9.1993 directing the release of the tractor must be held to be without jurisdiction, for there is nothing to show that prior to that date the tractor had been seized or even order for seizure had been passed. Order for seizure was passed for the first time on 4.1.1997 but apparently the same was never executed. Had it been so, the directions would not have been reiterated in the present order. 6. I also find substance in the submission of the Counsel for the petitioner that dismissal of criminal revision No. 831/83 should not stand in the way of the petitioner in pursuing his remedy for the revision was dismissed for non-prosecution and not on merits, as the Supreme Count has recently observed in the case of Krish-nan v. Krishnaveni, (1997) 4 SCC 241 : 1997 (1) East Cr C 643 (SC), the provision of Section 482 read with Section 483 of the Code of Criminal Procedure provide enough jurisdiction to High Court to supervise the proceedings of the Court below. Therefore in a case where the order of the Court is found to be not in accordance with law, this Court would not be deterred from interfering in the matter for the ends of justice. 7. Admitted the proceeding in the criminal case commenced in the year 1980 and till date the tractor in question has not been seized. Order to that effect was passed only on 4.1.1997. But apparently the same was never executed. 7. Admitted the proceeding in the criminal case commenced in the year 1980 and till date the tractor in question has not been seized. Order to that effect was passed only on 4.1.1997. But apparently the same was never executed. The question as to whether the tractor belonged to the vendor of the petitioner, namely, Alakhdeo being or his nephew, namely, opposite party No. 2 herein is in substance a dispute, of a civil nature and I have serious doubt in order for release of the tractor can be passed without taking evidence in an appropriate proceeding. In that view of the matter also, I do not think the Court below exercised its jurisdiction properly in directing the seizure and release of the tractor in favour of the opposite party. 8. Adverting to the second part of the order directing arrest of the petitioner, Counsel for the opposite party was not able to show that any prosecution has been formally launched either on the basis of complaint or police report against the petitioner for an offence under Section 201, IPC. The order of his arrest for committing the alleged offence in a case which has been instituted under Section 379 against Alakhdeo Singh cannot be said to be correct. 9. In the above premises both parts of the order not being in accordance with law, the impugned order dated 21.2.1997 is set aside and this application is allowed.