Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 560 (BOM)

Premsingh v. Prabhudayal Natthulal Jaiswal

2013-03-06

M.L.TAHALIYANI

body2013
JUDGMENT 1. Heard learned Counsel Shri O.W. Gupta for the applicants and learned Counsel Shri P.V. Navlani for non-applicant No.1. 2. Admit. Heard finally by consent of learned Counsel for the parties. 3. The applicants feel aggrieved by the order passed by the learned Additional Sessions Judge-2, Amravati in Criminal Revision Application No. 122 of 2007. 4. The applicants are accused in Criminal Case No. 30 of 2000 pending on the file of learned Chief Judicial Magistrate, Amravati. The said case arises out of the investigation in Crime No. 401 of 1999 under Sections 448 and 427 read with Section 34 of the Indian Penal Code. The said crime was registered on the complaint made by non-applicant No.1 Prabhudayal Jaiswal. 5. Non-applicant No.1 Prabhudayal Jaiswal was running a liquor shop at Old Bus Stand, Bohara Gali, Amravati. The liquor shop licence was issued in the name of applicant No.1 Premsingh Thakur. Non-applicant No.1 was conducting the business and was paying Rs. 11,000/- per month to applicant No.1 by way of consideration of use of liquor shop licence. 6. The incident had occurred on 30th December, 1999. The applicants had allegedly taken forcible possession of the shop premises by breaking open the locks installed by non-applicant No.1. During the course of taking forcible possession of the shop, they had caused damage to some of the articles. On the complaint made by non-applicant No.1, First Information Report for the offences punishable under Sections 448 and 427 read with Section 34 of the Indian Penal Code was registered against the applicants. After completion of investigation, charge-sheet was submitted vide Criminal Case No. 30 of 2000. During the pendency of said criminal case, the learned Chief Judicial Magistrate passed order under Section 258 of the Criminal Procedure Code and stopped the proceedings against the applicants. The operative part of order of the learned Chief Judicial Magistrate runs as under:- "Application is allowed. (I) The proceeding is stopped under Section 258 of the Criminal Procedure Code. (II) All accused are hereby released for the offences punishable under Sections 448 and 427 of the Indian Penal Code. (III) Their bail bonds stand cancelled. Dated – 17.10.2006 Sd/- (Sau. M.A. Baraliya) Chief Judicial Magistrate, Amravati." 7. A revision petition was filed in the Court of Sessions against the said order by non-applicant No.1. (II) All accused are hereby released for the offences punishable under Sections 448 and 427 of the Indian Penal Code. (III) Their bail bonds stand cancelled. Dated – 17.10.2006 Sd/- (Sau. M.A. Baraliya) Chief Judicial Magistrate, Amravati." 7. A revision petition was filed in the Court of Sessions against the said order by non-applicant No.1. The learned Additional Sessions Judge by the impugned judgment and order dated 28th November, 2011 set aside the order passed by the learned Chief Judicial Magistrate. The operative part of order of the learned Additional Sessions Judge runs as under:- (1) Revision is allowed. (2) The order passed by the learned Magistrate below Exh. 13 discharging the accused and stopping the proceeding under Section 258 of Criminal Procedure Code is hereby set aside. (3) The accused are directed to face the trial. They shall attend the Court on 16-1-2012 in the instant case before the trial Court. (4) Record be sent back to the trial Court. Dated – 28.11.2011 Sd/- (Ku. A.S. Shende) Additional Sessions Judge-2, Amravati." 8. It is this order which is challenged in the present application by the applicants/original accused. The learned Additional Sessions Judge after having gone through the statement recorded under Section 161 of the Criminal Procedure Code during the course of investigation had come to the conclusion that there was ample material against the applicants to proceed against them and that there was no reason for the learned Chief Judicial Magistrate to stop the proceedings. 9. I have gone through the order passed by the learned Chief Judicial Magistrate. The order of the learned Chief Judicial Magistrate is mainly based upon the injunction granted by the civil court. It is noted that the injunction order was passed after about four months of the alleged incident. The question which might come up for determination during the course of trial would be as to whether non-applicant No.1 was in actual physical possession of the premises on the date of incident and as to whether the applicants had committed trespass and mischief. The title over the property and other incidental issues were not subject matter of the criminal case pending before the trial Court. 10. The trial Court has also stated in its order that the police department should not have interfered in the matter as the same pertained to Prohibition and Excise Department. The title over the property and other incidental issues were not subject matter of the criminal case pending before the trial Court. 10. The trial Court has also stated in its order that the police department should not have interfered in the matter as the same pertained to Prohibition and Excise Department. In my considered opinion, the trial Court has committed error in holding that Prohibition and Excise Department was the competent department to resolve the dispute between non-applicant No.1 and the applicants. The trial Court failed to note that the dispute was not regarding the licence to sell liquor, but it did pertain to the possession of premises and trespass thereon. 11. As such the learned trial Court has misdirected itself while passing the order. The learned Additional Sessions Judge has therefore rightly set aside the order passed by the learned Chief Judicial Magistrate. No interference is called for by this Court in the order passed by the learned Additional Sessions Judge. The application is, therefore, dismissed. Application dismissed.