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2006 DIGILAW 506 (CAL)

JHARNA BANERJEE v. STATE OF WEST BENGAL

2006-08-11

PRABUDDHA SANKAR BANERJEE

body2006
( 1 ) THIS revision as per provision of Section 401 read with Section 482 is at the instance of Jharna Banerjee who was complainant in connection with kharagpur (KGP) (T) Case No. 173 dated 27. 08. 2000. The said case was filed against Smt. Kanak Banerjee and others for alleged offence under Sections 379, 427 of I. P. C. ( 2 ) THE Police after investigation submitted charge sheet for alleged offence under Sections 461/379/427/34 of I. P. C. It was numbered as G. R. Case No. 1354 of 2000/ T. R. No. 61 of 2002. ( 3 ) THE learned Judicial Magistrate, Second Court, Midnapur after conclusion of trial found the accused persons not guilty and accordingly they were acquitted. ( 4 ) THE learned Magistrate further ordered that the seized Alamat be returned to the owner of the godown No. C-237 after period of appeal is over. ( 5 ) THEREAFTER, the acquitted persons filed one application before the learned Magistrate as per Section 452 of the Criminal Procedure Code. By filing the said application the petitioners of that petition prayed for direction upon the Inspector-in-Charge, Kharagpur Town to open or brake open the padlock put on the main door of the godown of those petitioners standing over railway Plot No. C-237. ( 6 ) THE learned Magistrate vide his order dated 11. 8. 2003 allowed the application and directed Inspector-in-Charge, Kharagpur (T) Police Station to take necessary steps so that the accused petitioners can get the possession of the said godown. Copy of the said order was sent to I. C. for necessary action. ( 7 ) ON 12. 8. 2003, the de facto complainant filed another application in which she took the plea that the Court had no power to pass the previous order. ( 8 ) HOWEVER, the said application was rejected by the Learned magistrate. ( 9 ) AGAINST the said order, the de facto complainant preferred one revision being criminal revision No. 258 of 2003 and the learned Additional session Judge, 5th Court, Paschim Midnapur dismissed the same on contest. ( 8 ) HOWEVER, the said application was rejected by the Learned magistrate. ( 9 ) AGAINST the said order, the de facto complainant preferred one revision being criminal revision No. 258 of 2003 and the learned Additional session Judge, 5th Court, Paschim Midnapur dismissed the same on contest. ( 10 ) THE learned Additional Session Judge dismissed the said revision mainly on the ground that order of acquittal and return of the seized articles were not challenged before the competent forum and the learned Additional session Judge was also of the opinion that the Court below accepted the opposite Parties i. e. the accused persons as owner of the godown. ( 11 ) SRI Debabrata Acharya appearing on behalf of the present petitioner challenged the order on the ground that as per provision of Section 462 of the criminal Procedure Code, the learned Magistrate had no power to alter order after the judgment was delivered. The said order of the learned Magistrate was also challenged on the ground that there was error on the part of the learned Magistrate in passing the order by which the I. C, Kharagpur was directed to give possession of the godown to the accused persons who were petitioners before the learned Magistrate. The said order was also challenged on the ground that the Court had no power to pass such order after pronouncement of judgment and the Court ought to have considered the report of the Police officer which clearly provides that the Police did not put any padlock over the godown. ( 12 ) SRI Probal Mukherjee, Advocate appearing for the Opposite Parties, however, challenged the maintainability of the case on the ground that the instant revisional application has been filed in the disguise of second revision. ( 13 ) SRI Probal Mukherjee, learned Advocate also challenged the pleas as raised by the learned Lawyer for the petitioner that this Court, at this stage, should not interfere with the findings of the Court below i. e. order of the learned additional Session Judge and if this Court, at this stage, entertains this application, it would be miscarriage of justice. At the same time Sri Probal mukherjee contended that the order of the learned Additional Session Judge is clear and the finality of the order impugned has come to an end. At the same time Sri Probal mukherjee contended that the order of the learned Additional Session Judge is clear and the finality of the order impugned has come to an end. ( 14 ) BEFORE the pleas are discussed, I want to mention some relevant factors. ( 15 ) ONE civil Suit was filed against the present petitioner Jharna banerjee by one Pratap Singh Arora which was numbered as O. S. No. 122 of 1983 before the Second Court of Munsiff at Midnapur. The judgment passed in that case is annexed and marked as Annexure 'a' and on perusal of the same, it is seen that the suit property namely the godown with structure over plot No. C-237 was the subject matter of that suit which is identical with the number of the godown as mentioned in the FIR. The said civil suit was tiled for ejectment and recovery of possession. ( 16 ) ON perusal of the said judgment, it reveals also that Mrs. Jharna banerjee was in possession of the property in question and the learned Munsiff refused to pass any order in favour of the plaintiff of that case. It is also seen from Annexure 'b' that appeal was preferred against that judgment but the same was dismissed. ( 17 ) IN the complaint which was the basis of the FIR, it was alleged that the accused persons committed theft after breaking open the padlock of the godown in question. ( 18 ) THE judgment passed by the learned Magistrate is Annexure 'e'. ( 19 ) THE learned Magistrate after due discussion of evidence and materials on record acquitted the accused persons. ( 20 ) SUBSEQUENTLY the said accused persons filed one application under section 452 of the Criminal Procedure Code before the learned Magistrate after the period of appeal was over. ( 21 ) THE learned Magistrate by the impugned order directed the I. C. Kharagpur to hand over possession of the godown in question after breaking the padlock. ( 22 ) ON perusal of the impugned order it is seen that the learned magistrate on the basis of provision of Section 452 passed the order on the presumption that the Court can pass such order if a person "is entitled to possession thereof. . . . . . . . . . . . . . . ( 22 ) ON perusal of the impugned order it is seen that the learned magistrate on the basis of provision of Section 452 passed the order on the presumption that the Court can pass such order if a person "is entitled to possession thereof. . . . . . . . . . . . . . . " ( 23 ) SECTION 452 sub Clause 2 runs as follows : - " (2 ). An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub-section (1) is modified or set aside on appeal or revision. " ( 24 ) ON scrutiny of Section 452 it is clear that possession relates to 'movable property' which were seized from the custody of the person. Any property includes property voluntarily produced before the Magistrate by a witness in the case as property seized by Police or found on the person of the accused. ( 25 ) THE Criminal Procedure Code by Ratanlall and Dhirajlall 15th edition Reprint 2001 clearly provides the word "property" does not include immovable property (Page 709 ). ( 26 ) IT is therefore, crystal clear that the Learned Magistrate had no jurisdiction to pass the order by which the I. C. Kharagpur (Town) was directed to hand over possession of the godown to the acquitted accused persons of the criminal case. ( 27 ) SRI Debabrata Acharya appearing on behalf of the petitioner referred the case in between Harjeet Singh v. State of West Bengal \n C. R. R. No. 469 of 1996 reported in (2005)2 Cal HN 445 : (2005)1 C Cr LR (Cal) 598. ( 28 ) ON the basis of the same it was submitted that as the Court disposed of a matter finally by way of signing its judgment, it becomes functus officio and it can neither recall nor review an order passed by it in view of the bar of section 362 of Criminal Procedure Code. ( 29 ) THE case in between Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. ( 29 ) THE case in between Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. reported in 2001 SCC (Cr) 113:2001 C Cr LR (SC) 41 was also referred by Sri Debabrata Acharya. ( 30 ) ON perusal of the said reported cases, it is clear that the principle, as laid down by the Hon'ble Court is applicable in this case. ( 31 ) I have already stated that the instant application has been challenged by the Opposite Parties on the ground that this Court by invoking the power under Section 482 of the Criminal Procedure Code cannot act as a second revisional Court. ( 32 ) IT is true that by invoking the provision of Section 482 of the Criminal procedure Code, the High Court shall not act as a second revisional Court. At the same time, we cannot ignore the fact that if it is found that there was inherent defect in the order from the very beginning which was not cured by the first revisional Court, the High Court should invoke its power under Section 482 of the Criminal Procedure Code and should rectify the said inherent defect. ( 33 ) I have already stated that the present petitioner is in possession of the property in question on the basis of judgment passed in civil suit as mentioned earlier. If the order of the learned Magistrate is acted upon, it will be against the said order of the civil Court which has the jurisdiction to say who is in actual possession of the property in question. ( 34 ) IN this case answer to the said query is in affirmative i. e. in favour of the present petitioner. ( 35 ) ACCORDINGLY, I am of clear opinion that the order passed by the learned Magistrate and subsequently the order passed by the learned Additional session Judge in connection with the revisional application cannot be supported and inference of this Court is required. In the result, this criminal revision is allowed. The order passed by the learned Magistrate and subsequent confirmation of the same by the learned Additional Session Judge in criminal revision No. 258 of 2003 is hereby set aside. Copy of this order be sent to the court below for information. .