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Om Prakash Sharma Vs. Ramkishan Agarwal - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantOm Prakash Sharma
RespondentRamkishan Agarwal
Excerpt:
- - that late sharma failed to abide by the terms and conditions of the hire purchase agreement and the matter was referred to arbitration in award case no......was allowed custody of the vehicle. ultimately, the accused in that case was acquitted but the learned magistrate did. not pass any order under section 452 cr.p.c. hence, the vehicle continued to remain in the custody of the o.p. although the learned magistrate did not make any record to that effect, perhaps he did not make any order due to the fact that meanwhile the o.p. ramkishan agarwal instituted a civil suit in the court of sadar munsiff, gauhati which was t.s. no. 71/75. on his prayer the learned munsif issued injunction against the defendants, one of whom was m/s kamal trading co. and in favour of the plalntiff o.p. however, the order of injunction was vacated by the learned court against which there was an appeal (appeal no. 2 of 1976). the appeal was also.....
Judgment:

S.M. Ali, J.

1. The petition under Section 397/401 Cr.P.C. is directed against the order dated 21.11.80 passed by learned Addl. Sessions Judge, Gauhati in Misc. Appeal No. 24 (K-4) of 1979 dismissing the appeal and upholding the order dated 29.6.79 passed by the learned Judicial Magistrate, Gauhati under Section 452 Cr.P.C. in case No. C.R. 667 C of 1975 by which the learned Judicial Magistrate rejected the petition of this petitioner for having custody of the vehicle involved in the case.

2. Vehicle No. ASK-7891 (truck) was purchased by and registered in the name of Bhawarlal Sharma who died in an accident in the midst of the litigations regarding the vehicle as narrated below. The vehicle was acquired by late Sharma under hire purchase agreement with a firm styled as M/s Kamal Trading Co. of which the present petitioner Om Prakash Sharma is a partner. It is the case of the Kamal Trading Co. that late Sharma failed to abide by the terms and conditions of the hire purchase agreement and the matter was referred to arbitration in Award Case No. 16 of 1975 in the Calcutta High Court and in that case M/s Kamal Trading Co. was declared as lawful owner of the vehicle and entitled to its possession.

Meanwhile, late Sharma lodged a compLalnt which led to start of Case No. C.R. 517/75 in the court of the Judicial Magistrate, Gauhati against some other persons under Section 409/379 IPC regarding the vehicle which was seized by the Police and late Sharma obtained custody thereof as ordered by the Court on 13.5.75. Later, in the aforesaid Award Case, vide order dated 20.5.75 passed by the Calcutta High Court, the present petitioner was appointed as receiver of the said vehicle. As this order was brought to the notice of the learned Judicial Magistrate, Gauhati, he modified the order directing the vehicle to be given to the custody of the petitioner (Om Prakash Sharma). In that case, the accused persons were also discharged.

O.P. Ramkishan Agarwal lodged a compLalnt before another Judicial Magistrate, Gauhati against late Sharma under Section 420 IPC. It was Case No. C.R. 667 of 1975, and the petitioner was allowed custody of the vehicle. Ultimately, the accused in that case was acquitted but the learned Magistrate did. not pass any order under Section 452 Cr.P.C. Hence, the vehicle continued to remain in the custody of the O.P. Although the learned Magistrate did not make any record to that effect, perhaps he did not make any order due to the fact that meanwhile the O.P. Ramkishan Agarwal instituted a civil suit in the Court of Sadar Munsiff, Gauhati which was T.S. No. 71/75. On his prayer the learned Munsif issued injunction against the defendants, one of whom was M/s Kamal Trading Co. and in favour of the pLalntiff O.P. However, the order of injunction was vacated by the learned Court against which there was an appeal (Appeal No. 2 of 1976). The appeal was also dismissed.

Meanwhile, Bhawarlal Sharma died in an accident and there was no further cLalm on his behalf regarding the vehicle. Afterwards, a petition was filed on behalf of M/s Kamal Trading Co. under Section 452 Cr.P.C. for disposal of the vehicle in connection with the case No. C.R. 667/75. In that petition the order passed in the Award Case by the Calcutta High Court was referred to. The learned Magistrate after hearing both sides, dismissed the application and consequently the vehicle remained in possession of the present O.P. In Appeal the learned Addl. Sessions Judge upheld the order passed by the learned Magistrate.

3. In this petition it has to be seen whether any illegality or material irregularity has been committed by the learned courts below in passing the impugned order. It is found that the learned appellate court in the appeal under Section 454 Cr.P.C. took into consideration all the aspects of the matter and passed the impugned order. Learned Counsel for the petitioner Mr. Bhatra referred to Criminal Case No. 517/75 and, submitted that at the end of the inquiry the learned Magistrate passed the order regarding custody of the vehicle in favour of the present petitioner. While that order still remains in force it has to be given effect to on priority basis inasmuch as the petitioner did not get possession of the vehicle in pursuance of that order. But it is found that the learned Magistrate in that case did not hold any inquiry as envisaged under Section 452 Cr.P.C. It was rather an order passed Under Section 451 Cr.P.C. As the order of the Calcutta High Court was referred to before him he simply modified his earlier order passed in favour of late Sharma, the, compLalnant and in view of the order of the arbitration case, directed the vehicle to be given to the custody of the petitioner.

As pointed out by the learned Court below, the petitioner was not a party in that case. So, it cannot be said that there was an inquiry or trial in the said criminal case. The term 'concluded' as found under Section 452 Cr.P.C. means conclusion after full inquiry D.D. Nath v. Kanshi Ram AIR 1966 J & K 143 : 1966 Cri LJ 1444. There is no material brought to the notice of the court as to whether the learned Magistrate commenced the inquiry at all in that case. The term 'inquiry' is defined under Section 2(g) Cr.P.C. wherein it is Lald down that 'inquiry' means every inquiry other than a trial conducted under the Code by a Magistrate or Court. This refers to the inquiry about the subject-matter of the case. There is no material to think that the learned Magistrate embarked on any inquiry regarding the compLalnt in that case. So, the order passed by him in favour of the present petitioner cannot be one passed under Section 452 Cr.P.C.

4. Section 452 Cr.P.C. gives a discretion to the Court. The discretion however cannot be exercised arbitrarily but it should he done according to the sound judicial principles. In the present case, there is nothing to think that the learned Court below exercised its jurisdiction arbitrarily. Unless it is clear that the Court exercised the discretion on some wrong principle and that it ordered the custody of the property with somebody who had no cLalm or title to it, the High Court will not interfere in revision. The order under this section does not decide the question of ownership of the vehicle. It only decides the right to possess till the Civil Court decides the question of ownership. Admittedly, there has been a civil suit between the present parties regarding the ownership or entitlement to get the possession of the vehicle. It is also admitted that at the moment the vehicle is in possession of the O.P. The learned Civil Court did not disturb such possession by any temporary order. The courts below took into consideration this aspect of the matter and, in my view, I find no reason to interfere with the impugned order in view of the fact that the matter of ownership or right to possession of the vehicle is still pending for ultimate decision in the civil court. If law permits, the Civil Court may be moved for an appropriate order of possession of the vehicle pending final decision.

5. In view of the discussion made above, the petition is rejected.


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