Ramesh Sharma Alias Ramesh Mistri And Another v. State Of Bihar
1999-10-28
P.K.DEB
body1999
DigiLaw.ai
Judgment P.K.Deb, J. 1. This application under Article 226 of the Constitution of India has been filed for issuance of writ of certiorari in respect of the orders passed by IIIrd Additional Sessions Judge, Nalanda, in Criminal Revision No. 71 of 1992 and the order dated 16-3-1992 passed by Additional Chief Judicial Magistrate, Hilsa, in connection with Islampur Police Station Case No, 56 of 1990. 2. From the factual aspect of the case, it appears that the husband of the opposite party No. 2, i. e., Ashok Prasad was alleged to be kidnapped by the petitioners and, as such, Islampur Police Station Case No. 56 of 1990 was registered. In course of investigation of the case, the petitioners were arrested and put behind the bar. Afterwards, charge-sheet was submitted in the case and then the case was committed to the Sessions and at that time writ application was filed, and the Sessions Trial was pending before the Sessions Court. 3. It appears that during the investigation of the case the investigating agency, i. e., police personnel of Islampur Police Station had locked a shop house which was allegedly run by the missing Ashok Prasad in collaboration with the petitioner No. 1 Ramesh Sharma. A petition was filed before the Additional Chief Judicial Magistrate by opposite party No. 2 Smt. Shanti Devi, wife of the missing person Ashok Prasad for release of some of the articles kept in the shop which were under lock and key as those articles belonged to customers. It may be mentioned here that the shop was run for repairing of thrasher. A lathe machine was inducted in the shop house. In pursuance of that petition, a release order was passed to the limited extent of release of the articles in the shop which were alleged to be belonged to the customers but it is the allegation that while such release was being made in compliance of the order of the A.C.J.M. dt. 8-8-90 the police had given all the articles in shop in possession of O.P. No. 2. Such release was challenged by the petitioners after being released on bail before the A.C.J.M. but, as already released order was passed long back, he held the petition of the petitioners to be infructuous. Against that order, a revision was preferred before the Sessions Judge being Criminal Revision No. 71 of 1992.
Such release was challenged by the petitioners after being released on bail before the A.C.J.M. but, as already released order was passed long back, he held the petition of the petitioners to be infructuous. Against that order, a revision was preferred before the Sessions Judge being Criminal Revision No. 71 of 1992. By a long order, the IIIrd Additional Sessions Judge dismissed the petition. Hence, this writ petition. 4. It appears that whole matter arises out of wrong committed by the police personnel and also by the A.C.J.M. in exercising their jurisdiction. The shop in question was not subject-matter of the criminal case or the same was not, in any way connected with the alleged crime and no seizure was made by the investigation agency. During the investigation of the criminal case when no seizure was there and when there was no proceeding under Chapter X of the Cr. P.C. then there was no scope of putting the shop under lock and key by the police personnel: That action of the police personnel was definitely without jurisdiction. If the investigating agency during the course of investigation felt that the offence was committed due to fued in respect of the shop house and that there was any apprehension of breach of peace in respect of possession of the shop house then the police personnel could have made a non-F.I.R. case by referring to the Executive Magistrate, as contemplated under Chapter X Cr. P.C. but the same had not been done rather the police took the law into their own hands and put a lock in the shop house which was definitely without jurisdiction and by entertaining a petition for release of the articles in the shop by the A.C.J.M. has committed further wrong in perpetuating the illegality. It is found that the A.C.J.M. has no jurisdiction to pass release order when there was no seizure. As such there remained no question of passing any order either under Sec. 451 or Sec. 452 of the Cr. P.C. Although the matter was dealt by the learned Sessions Judge in the revisional order but it appears that he had not considered the matter in its proper perspective. While passing the concluding order, the whole procedure adopted by the police personnel and by the ACJM and then by the Additional Sessions Judge are in the wrong forum and without jurisdiction.
While passing the concluding order, the whole procedure adopted by the police personnel and by the ACJM and then by the Additional Sessions Judge are in the wrong forum and without jurisdiction. Hence, the whole procedure of locking of shop and then release of the articles of the locked shop to any of the parties are beyond the scope of jurisdiction of the criminal Courts and of the police personnel. 5. Hence, all those procedures followed in the case are hereby quashed. When a wrong is found to be committed by a Court of law then if a petition is filed from side of the petitioners, he would make an attempt to make the matter straight by asking recovery of the articles given in possession of O.P. No. 2 and asking the parties to proceed in proper forum for redressal of their respective grievances. 6. The writ petition is, thus, allowed quashing the whole proceeding, as mentioned above.