Skip to content


Kamlesh Kumar Vs. Girish Kapoor and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1984CriLJ1680
AppellantKamlesh Kumar
RespondentGirish Kapoor and anr.
Cases ReferredRam Autar v. Udayvir Singh
Excerpt:
- - 25,000/- and one surety of the like amount with a condition that he would maintain the said print of the film in the same condition and would produce it in the court when called upon. at best the said order could only be suspended during the pendency of the revision......of attachment a revision was filed in the court of sessions judge, aligarh. the learned sessions judge passed an order staying attachment. but before the order could be communicated to the s.o. of the police station concerned the attachment had taken place. when this fact was brought to the notice of the sessions judge he passed an order that the attachment be released in favour of the person from whose possession the property had been attached. it was held that the order passed by the sessions judge relating to attachment made in proceedings under section 145. cr.p.c. against the applicant in revision was without jurisdiction.9. in my view, therefore, the impugned order being without jurisdiction has to be struck down because it is a nullity, being ultra vires and is nothing but an.....
Judgment:

I.P. Singh, J.

1. Kamlesh Kumar applicant has moved this application Under Section 482, Cr.P.C. to get order dt. 10.10.83 passed by IX Addl. Sessions Judge, Moradabad quashed.

2. The brief facts are that Girish Kapoor O.P. No. 1 representing himself to be the Manager of M/s. Angles Films, Moti Cinema, Chandni Chowk, Delhi lodged an FIR at P.S. Bilari, Moradabad that a print of film 'Nasib' belonging to M/s. Angles Films was stolen from office in New Delhi on 4.6.83 and its; print was being run in Bulari. It was in pursuance of this FIR that print of film Nasib running in Anil Touring Talkies, Bilari was seized by the police on 5.6.68. The present applicant is the Manager of the said Touring Talkies. Thus counter claims to the possession of the said print of film Nasib arose. Both the parties applied Under Section 457, Cr.P.C. in the court of Judicial Magistrate, Moradabad for the delivery of the same. The learned Magistrate after considering the evidence led by the parties before him, ordered on 16.9.83 that tike said print of the film be given in the Sapurdagi of Kamlesh Kumar applicant on his executing a personal bond of Rs. 25,000/- and one surety of the like amount with a condition that he would maintain the said print of the film in the same condition and would produce it in the court when called upon.

3. The applicant's contention is that in pursuance of the said order of the learned Magistrate he executed the necessary bond on 16.9.1983 and obtained the said print on that very date.

4. Girish Kapoor, O.P. No. 1 filed Criminal Revision No. 239 of 1983 which came before IX Addl. Sessions Judge. Moradabad for disposal. In the revision the revisionist moved application dt. 7.10.83 accompanied by an affidavit praying that the said film be kept in sealed cover in Sadar Malkhana. Moradabad during the pendency of the revision so that the same may not be destroyed or disposed of by the Supurdgar Kamlesh Kumar (O.P. in the said revision).

5. This application dt. 7.10.83 was disposed of by the following impugned order:.The property in suit is the print of film 'Naseeb' which was given in the custody of Supardar on undertaking that he shall keep the said print in the state as it was delivered to him. In my opinion, the property in question be protected because it is the case property and it may be exhibited at the time of evidence. The prayer of the revisionist appears genuine.

Order

The property in question, i.e. print of film 'Naseeb' be taken back from the possession of the opposite party Kamlesh Kumar, Manager cum. proprietor Anil Touring Talkies, Bilari and the same be kept in sealed cover in Sadar Malkhana, Moradabad, pending disposal of the revision. S.H.O. Bilari is directed to comply with the order. Copy of the order be sent for compliance. Report by 14.10.1983.

It is against this order that the present application Under Section 482. Cr.P.C. has been moved.

6. The above order was passed in revisional jurisdiction of the Sessions Judge. Obviously that jurisdiction was exercised Under Section 397, Cr.P.C. Under its provisions the Sessions Judge could pass an interlocutory order by directing 'that the execution of any sentence or order be suspended....' It is, therefore, clear that in a revision, the Sessions Judge could, during the pendency of the revision, suspend either sentence or order against which the revision has been filed. In the present case there is no question of any sentence. There was only the order in question against which revision was filed. At best the said order could only be suspended during the pendency of the revision.

7. The question of suspending the order would only arise if it was still to be executed. If the order had already come into operation, there remained nothing to be suspended. In the present case it is undisputed fact that in pursuance of the order of the learned Magistrate, applicant Kamlesh Kumar had already executed the necessary bonds on the same date and had taken delivery of the said print of the film 'Naseeb'. Accordingly there remained nothing which could be suspended.

8. The impugned order which directs that the film be kept in sealed cover in Sadar Malkhana after taking back from the possession of Kamlesh Kumar applicant, during the pendency of the revision, to my mind is certainly beyond jurisdiction of the learned Sessions Judge exercising revisional power Under Section 397, Cr.P.C. The case of Ram Autar v. Udayvir Singh : AIR1953All498 provides an illustration on somewhat parallel facts in support of my above view. In the above case proceedings Under Section 145 Cr.P.C. were going on in the court of Magistrate. During the course of the proceedings the learned Magistrate passed an order directing that the property in dispute be attached. Against that order of attachment a revision was filed in the court of Sessions Judge, Aligarh. The learned Sessions Judge passed an order staying attachment. But before the order could be communicated to the S.O. of the police station concerned the attachment had taken place. When this fact was brought to the notice of the Sessions Judge he passed an order that the attachment be released in favour of the person from whose possession the property had been attached. It was held that the order passed by the Sessions Judge relating to attachment made in proceedings Under Section 145. Cr.P.C. against the applicant in revision was without jurisdiction.

9. In my view, therefore, the impugned order being without jurisdiction has to be struck down because it is a nullity, being ultra vires and is nothing but an abuse of the process of the court. Besides, interest of justice also requires that this order should not be allowed to stand.

10. The application is, therefore, allowed. The impugned order dt. 10.10.83 passed by the IX Addl. Sessions Judge, Moradabad in Criminal Revision No. 239 of 1983 is quashed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //