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Bachraj Dugar Vs. Narendra Kumar Singh and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantBachraj Dugar
RespondentNarendra Kumar Singh and anr.
Excerpt:
- .....counsel submits that the provisions contained in section 452 does not envisage service of any such notice on any party and it is entirely discretionary for the court to make any order, just and expedient, and in the instant case that has been done.6. but the crucial question is as to whether that is a correct position in law. it is undoubtedly true that the provisions contained in section 452 of the cr.p.c. do not enjoin a magistrate while disposing of a seized property to serve any notice on any party. although the statutory law is silent and does not express any requirement of issuance of any notice on any of the parties, in my opinion, in the eye of law there is necessary obligation that such a notice must be served on a person, who is likely to be affected by an order of disposal of.....
Judgment:

K. Lahiri, J.

1. The apple of discord was a motor cab the subject matter of a criminal case instituted by Narendra Kumar Singh, Opposite Party No. 1, who is not the owner thereof. The car in question, as alleged, was left with the petitioner Bachraj Dugar for rendering service involving the exercise of labour and skill in connection with some repairs needed in the car in question. Due to some differences a case was instituted under Section 406 I. P. C. against Bachraj Dugar, the petitioner-accused. The owner was not a party to proceeding, is also the indubitable position. On conclu- sion of trial, the court on acquittal of the accused-petitioner, held that the petitioner had a lien over the property, in all probability bearing in mind the provisions contained in Section 170 of the Indian Contract Act, 1'872. But, unfortunately, the trial court had omitted to serve notice on the registered owner of the car, who was the only person entitled to make use of the car in question before rendering the order of disposal of the car: The trial Court passed the judgment and order on 17-1-77 acquitting the accused and disposing of the car in favour of the present petitioner.

2. Complainant Narendra being aggrieved by the order came up before the Court of Session under Section 454, Cr.P.C. 1973. The Court of appeal has set aside the order on the assumption that the accused had no lien or right of retention of the property oblivious of the provisions contained in Section 170 of the Indian Contract Act.

3. The impugned order of the Court of appeal is insupportable in view of the fact that the appeal Court overlooked the lien claimed by the petitioner as a bailee. If, in fact, the car in question was left with the petitioner for rendering any service involving the exercise of labour or skill, in the absence of any contract to the contrary, he had a right to retain the vehicle in question until he received due remuneration for the services rendered by him.

4. Mr. P, N. Goswami, the learned Counsel for the Opposite Party has fairly submitted that the impugned order of the Appellate Court is not sustainable. However, the Counsel submits that the matter should go back to the trial Court for a just decision in view of snags contained in the proceeding before it. Counsel submits that the order of disposal of the car was made by the trial Court without serving any notice to 'the true owner' of the car, namely, the Opposite Party No. 2, Puranmal Mour, This is an admitted fact.

5. Mr. S.C. Das, the learned Counsel for the petitioner submits that on the facts and circumstances of the case, no such notice was required to be served on the owner of the car. Counsel submits that the provisions contained in Section 452 does not envisage service of any such notice on any party and it is entirely discretionary for the Court to make any order, just and expedient, and in the instant case that has been done.

6. But the crucial question Is as to whether that is a correct position in law. It is undoubtedly true that the provisions contained in Section 452 of the Cr.P.C. do not enjoin a Magistrate while disposing of a seized property to serve any notice on any party. Although the statutory law is silent and does not express any requirement of issuance of any notice on any of the parties, in my opinion, in the eye of law there is necessary obligation that such a notice must be served on a person, who is likely to be affected by an order of disposal of his property. This is, in fact, a reflection of the law laid down by the Supreme Court in the State Bank of India v. Rajendra Kumar Singh : 1969CriLJ659 , which runs as follows (at p. 661 of Cri' LJ):

It was, however, contended on behalf of the respondents that there was no provision in Section 520 of the Code of Criminal Procedure for giving notice to the affected parties and the order of the High Court cannot be challenged on the ground that no hearing was given to the appellant. In our opinion, there is no warrant or justification for the argument advanced on behalf of the respondents. It is true that the statute does not expressly require a notice to be issued, or a hearing to be given to the parties adversely affected. But though the statute is silent and does not expressly require issue of any notice there is in the eye of law a necessary implication that the parties adversely affected should be heard before the Court makes an order for return of the seized property.

7. Thereafter, their Lordships dealt with the decisions of leading cases, viz., Cooper v. Wandsworth Board of Works (1863) 14 CB NS 180; Ridge v. Baldwin (1963) 2 WLR 935; and Board of High School and Intermediate Education, U, P. Allahabad v. Ghanshyam Das Gupta : AIR1962SC1110 , and held as under (at p, 662 of Cri LJ):

Applying the principle to the present case it is manifest that the High Court was bound to give notice to the appellant before reversing the order of the Sessions Judge directing the disposal of the property under Section 517 of the Cr, P. C. As no such notice was given to the appellant, the order of the High Court dated 5th April, 1963 is vitiated in law.

X X X X X X

We are unable to accept this argument, It is true that 6s, 517 and 520 of the Cr.P.C. confer a discretion on the High Court as regards the disposal of the property seized or produced before it or regarding where any offence was said to have been committed. But as we shall presently show that the High Court has not exercised its discretion according to proper legal principle and its order Is hence liable to be set aside.

8. In my opinion, while setting aside the order of the Court of appeal, it is just and expedient that the matter should be remanded back to the trial Court for disposal of the application in accordance with law as set out above and particularly the provisions contained in Section 170 of the Indian Contract Act.

9. It is a common case of the parties that the matter should be disposed of at an early date. It is highly desirable to do it in view of the fact that an automobile should not be kept idle in the custody of the police any longer. Under these circumstances, I direct that this matter should be disposed of by the trial Court within a month from the date of receipt of the records by the Chief Judicial Magistrate, Gauhati.

10. In the result, the application is allowed. The case is remitted back to the trial Court for due disposal

11. Counsel for the Opposite Party No. 2 states before this Court that the temporary custody of the car pending disposal of the proceeding should be maintained in his favour. Mr. Das vehemently objects to the proposal. In the circumstances, I direct that the status quo should be maintained pending final disposal of the proceeding before the trial Court.


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