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Himachal Pradesh High Court · body

2016 DIGILAW 1959 (HP)

Vijay Kumar son of Sh. Babu Ram v. State of H. P.

2016-09-09

P.S.RANA

body2016
JUDGMENT : P.S.RANA, J. 1. Present petition is filed under Section 482 of the Code of Criminal Procedure 1973 against order dated 29.7.2015 passed by learned Additional Sessions Judge Sirmour District at Nahan whereby learned Additional Sessions Judge dismissed revision petition of petitioner and affirmed order of learned Trial Court dated 8.4.2015. BRIEF FACTS OF THE CASE: 2. On 1.4.2015 Sh Govind Attri got recorded his statement under section 154 code of criminal procedure 1973 before ASI Rajpal that on 1.4.2015 he was coming from Chandigarh at about 4.15 AM (Night) and when he reached at Naina Tikkar then he noticed five vehicles were loaded with oxen. Vehicles were checked by police officials. Oxen were loaded in cruel manner and drivers of vehicles did not give satisfactory answer and criminal case under section 429 IPC read with section 34 IPC and under section 11 of Prevention of Cruelty to Animal Act 1960 registered. Oxen handed over to local residents by investigating agency as of today. Sh Vijay Kumar petitioner filed petition under section 457 Cr.PC with prayer that cattle two in number be ordered to be released to petitioner on any conditions imposed by Court. It is alleged that Vijay Kumar is the owner of two cattle and cattle were purchased in cattle fair from Ropar (Punjab) for agricultural work. It is alleged that Vijay Kumar is agriculturist and he has no past criminal background. It is alleged that no criminal case is pending against Vijay Kumar. Learned Trial Court dismissed the application on 8.4.2015. 3. Feeling aggrieved against the order of learned Trial Court Vijay Kumar filed revision petition under section 397 Cr.PC. Learned Additional Sessions Judge Sirmour District at Nahan on dated 29.7.2015 dismissed revision petition and affirmed the order of learned Trial Court. Learned Additional Sessions Judge further directed that Vijay Kumar is at liberty to file fresh application before learned Trial Court. Thereafter Vijay Kumar filed fresh application before learned Trial Court under section 457 Cr.PC on the ground that investigation is completed and charge-sheet stood filed in Court and oxen be released to him on the ground that Vijay Kumar is owner of oxen. Learned Trial Court again dismissed the application of petitioner on dated 14.9.2015 relating to releasing of oxen. 4. Learned Trial Court again dismissed the application of petitioner on dated 14.9.2015 relating to releasing of oxen. 4. Court heard learned Advocate appearing on behalf of petitioner and learned Deputy Advocate General appearing on behalf of non-petitioner and also perused entire records carefully. 5. Following points arise for determination in present petition: (1) Whether petition filed under Section 482 code of criminal procedure 1973 is liable to be accepted as mentioned in memorandum of grounds of petition?. (2) Final Order. Findings upon Point No.1 with reasons. 6. Submission of learned Advocate appearing on behalf of petitioner that investigation is complete, charge-sheet has been filed in competent Court of law and trial of the case will be concluded in due course of time and custody of two oxen be granted to him on sapurdari is accepted for reasons hereinafter mentioned. As per section 457 of the Code of Criminal Procedure 1973 whenever the seizure of property by any police officer is reported to a Judicial Magistrate under the Code of Criminal Procedure 1973 the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to possession thereof. It is well settled law that discretionary power should be exercised by Judicial Magistrate judicially. It is well settled law that Judicial Magistrate has to decide as to who is entitle to possession. It is well settled law that Judicial Magistrate has no power to go into question of title of property because Judicial Magistrate is not a Civil Court. See 2003 (12) SCC 429 title Rajmata Vijaya Raje Scindia Vs. State of M.P. and others. See AIR 1978 SC 1282 title Ram Parkash Sharma Vs. State of Haryana. See AIR 1968 Manipur 29 title Khuraijam Jugeswar Singh and another Vs. Smt. Chanabam Ongbi Tomu Devi and another. Chief Agriculture Officer Haridwar (Uttrakhand) has given certificate Annexure P3 placed on record that petitioner is agriculturist by profession and Chief Agriculture Officer has also given certificate to the effect that petitioner has purchased two oxen from Ropar (Punjab) for agriculture purpose. Chief Agriculture Officer has also given certificate that character of Vijay Kumar is satisfactory. No other person has filed any application claiming title of two oxen over suit property. 7. Chief Agriculture Officer has also given certificate that character of Vijay Kumar is satisfactory. No other person has filed any application claiming title of two oxen over suit property. 7. Submission of learned Deputy Advocate General appearing on behalf of non-petitioner that two oxen were carried by petitioner for the purpose of slaughtering and not for the purpose of agriculture and the custody of two oxen has been granted to local residents as of today and on this ground present petition be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. Issue whether two oxen were carried in vehicle for the purpose of agriculture work or for the purpose of slaughtering is complicated issues of facts. Judicial finding relating to complicated issues of facts cannot be given at this stage. Judicial finding relating to complicated issues of facts whether two oxen were carried in vehicle for agriculture purpose or for slaughtering purpose would be given by learned Trial Court after giving due opportunity to both parties to lead evidence in support of their case. In view of certificate Annexure P3 given by Chief Agriculture Officer Haridawar (Uttrakhand) placed on record it is expedient in the ends of justice to allow petition. In view of above stated facts point No.1 is answered in affirmative. Point No.2 (Final Order). 8. In view of findings upon point No.1 petition is allowed and it is ordered that spurdari of two oxen owned by petitioner will be given to petitioner till conclusion of trial on furnishing personal bonds to the tune of Rs.100000/- (One lac) with one surety in the like amount to the satisfaction of learned Trial Court on following terms and conditions. (1) That two oxen will be produced before learned Trial Court whenever and wherever directed by learned Trial Court in accordance with law. (2) That petitioner will not sale or exchange two oxen during trial of case in any manner. (3) That petitioner will not change the nature of two oxen in any manner till disposal of trial. (4) That learned Trial Court will be at liberty to inspect two oxen in order to ensure that no cruelty is committed upon oxen in any manner till conclusion of trial. Certificate annexure P3 given by Chief Agriculture Officer Haridawar (Uttrakhand) will form part and parcel of order. (4) That learned Trial Court will be at liberty to inspect two oxen in order to ensure that no cruelty is committed upon oxen in any manner till conclusion of trial. Certificate annexure P3 given by Chief Agriculture Officer Haridawar (Uttrakhand) will form part and parcel of order. Order of learned Additional Sessions Judge and learned Trial Court are modified accordingly. Observations will not effect merits of the case in any manner. Petition filed under Section 482 Cr PC is disposed of. All pending application (s) if any are also disposed of.