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2012 DIGILAW 809 (GAU)

Sukhinder Singh v. State of Meghalaya

2012-06-29

INDIRA SHAH

body2012
JUDGMENT Dr. (Mrs.) Indira Shah, J. 1. The legality and validity of the orders dated 11.08.2011, 12.09.2011 and 15.09.2011, passed by the learned Additional Deputy Commissioner, Shillong in Mawsynram P.S. Case No. 2(1) of 2011 have been impugned in this revision application. I have heard Mr. M.F. Qureshi, learned counsel appearing on behalf of the petitioner as well as Mr. N. Khan, learned counsel appearing for the respondent No. 2 and Mr. H. Abraham, learned P.P. appearing on behalf of the respondent No. 1/State of Meghalaya. 2. The petitioner, who is the registered owner of the vehicle (Truck) bearing registration No. AS-23-G-0245 lodged an FIR at Mawsynram police station alleging that respondent No. 2 forcibly took away the Vehicle. Police registered a case under Section 393 IPC and the accused-respondent No. 2 was arrested. Respondent No. 2, after his release from the jail custody on bail, moved an application for custody of the said vehicle, which was, however, rejected by the trial Court vide order dated 19.04.2011. The petitioner's prayer for 'zimma' of the vehicle was allowed with certain conditions vide order dated 09.05.2011. 3. On 05.07.2011, respondent No. 2 moved a petition for re-calling the order dated 09.05.2011 and the learned trial Court re-called the said order on 11.08.2011 without giving an opportunity of hearing to the petitioner. The petitioner thereafter, on 15.9.2011, moved a petition to recall the order dated 11.08.2011, which was rejected. 4. During the pendency of investigation and before the order for 'zimma' of the vehicle was passed, the respondent No. 2 filed T.S. No. 5(H) 2011 and vide order passed in Misc. Case No. 7(11) 2011 obtained interim injunction in respect of the vehicle. His petition for 'zimma' of the vehicle was rejected vide order dated 19.04.2011, wherein it was observed by the learned trial Court that Civil Court has issued show cause notice as to why interim order should not be made absolute. The petitioner was allowed 'zimma' of the vehicle on the basis of report submitted by the investigating officer regarding ownership of the vehicle. 5. The order dated 05.07.2011 speaks that the petitioner vide injunction order passed by the Civil Court for restraining from taking possession of the vehicle and the interim injunction order was made absolute by the subsequent order. The petitioner obtained the order for 'zimma' of the vehicle concealing the order passed by the competent Civil Court. 5. The order dated 05.07.2011 speaks that the petitioner vide injunction order passed by the Civil Court for restraining from taking possession of the vehicle and the interim injunction order was made absolute by the subsequent order. The petitioner obtained the order for 'zimma' of the vehicle concealing the order passed by the competent Civil Court. The order rejecting the prayer of 'zimma' of the vehicle in favour of the respondent No. 2 was also challenged and sub-judiced Criminal Revision No. 13 (SH) 2011. Considering all, the trial Court stayed the order dated 09.05.2011 and notice to petitioner was issued to show-cause as to why the order should not be recalled. 6. It transpires from the order dated 11.08.2011 that in spite of service of notice, the petitioner did not file show cause reply and the learned trial Court recalled the order dated 09.05.2011. On 15.09.2011, the petitioner moved an application to recall the order dated 11.08.2011, which was rejected. 7. It is submitted by the learned counsel for the petitioner that the Criminal Court under Section 451 of the Code of Criminal Procedure can pass an order of disposal of property till the end of trial. The trial Court has no jurisdiction to review its order. Therefore, the orders passed by the learned trial Court are illegal and liable to be set aside. 8. Learned counsel for the respondent No. 2, Mr. Khan submitted that the petitioner obtained order for 'zimma' of the vehicle by suppressing the material facts. The petitioner duly participated in the Misc. Case before the Civil Court and the interim injunction order was made absolute after elaborate discussion by the Civil Court. Moreover, the order of the learned trial Court rejecting the respondent's prayer for 'zimma' of the vehicle has been challenged in Criminal Revision. The petitioner had the notice of pendency of the Criminal Revision. Since the petitioner obtained the order suppressing the material facts, the Court rightly recalled the order passed in favour of the petitioner. 9. In the cited case of M/s Karmachand Ganga Pershad & Anr. Vs. Union of India & Ors., reported in AIR 1971 SC 1244 , it has been observed that it is a well established principle of law that the decisions of the Civil Courts are binding on Criminal Courts. The converse is not true. In the case of Oommen Vs. In the cited case of M/s Karmachand Ganga Pershad & Anr. Vs. Union of India & Ors., reported in AIR 1971 SC 1244 , it has been observed that it is a well established principle of law that the decisions of the Civil Courts are binding on Criminal Courts. The converse is not true. In the case of Oommen Vs. Karkey Joseph, 1956 TRAV-CO220 (AIR V.43C84 Oct.) it was observed that Section 517 of the Code of Criminal Procedure expressly confers jurisdiction on the trial Magistrate in the matter of passing necessary orders for the disposal of such articles. The fact that such jurisdiction is conferred on him, does not mean that in the exercise of that jurisdiction he can conveniently ignore all the attendant circumstances, which have real bearing on the question of the ownership or the right to the custody of the articles. On this question, a proper adjudication by a competent Civil Court has undoubtedly to be taken note of by the Magistrate while passing orders in exercise of the jurisdiction under Section 517. 10. It is submitted by the learned counsel for the respondents that injunction order passed by the Civil Court has not been challenged by the petitioner. So long the injunction order subsists; the order passed by the competent Civil Court is binding on Criminal Court. 11. There cannot be any dispute that Civil Court is competent to decide the question of title of the property as well its as possession. Now the question arises whether the Criminal Court can recall its own order or whether the impugned order amount to review of the order, which is barred by Section 362 of the Code of Criminal Procedure. 12. In the case of Vishnu Agarwal Vs. State of U.P. & Anr., reported in AIR 2011 SC 1232 , it has been observed as under: - 8. In our opinion, Section 362 can not be considered in a rigid and over-technical manner to defeat the ends of justice. As Brahaspati has observed: Kevalam Shastram Ashritya Na Kartavyo Vinirnayah Yuktiheeney Vichare Tu Dharma-haani Prayajate which means:. 9. Apart from the above, we are of the opinion that the application filed by the respondent was an application for recall of the order and not for review. As Brahaspati has observed: Kevalam Shastram Ashritya Na Kartavyo Vinirnayah Yuktiheeney Vichare Tu Dharma-haani Prayajate which means:. 9. Apart from the above, we are of the opinion that the application filed by the respondent was an application for recall of the order and not for review. In Asit Kumar V. State of West Bengal and Ors, 2009 (1) SCR 469; (AIR 2009 SC (Supp) 282), this Court made a distinction between recall and review which is as under: There is a distinction between a review petition and a recall petition, While in a review petition, the Court considers on merits whether there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association V. Raghabendra Singh& Ors. [ 2007 (11) SCC 374 ]; ( AIR 2007 SC 1386 ) cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences. 13. Here in this case also, the learned trial Court simply recalled its order in view of the order passed by the competent Civil Court. Therefore, no error was committed by the trial Court while recalling the earlier order which was obtained by suppressing the fact that the competent Civil Court has made absolute, the injunction order passed, against the petitioner. This Criminal Revision Petition, thus fails and accordingly it is dismissed. There shall be no order as to cost. Petition dismissed