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Raj Kishore Mahapatra and ors. Vs. Narasingh Mishra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCrl. Revn. No. 485 of 1967
Judge
Reported inAIR1969Ori56; 34(1968)CLT1286; 1969CriLJ430
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 517; Indian Penal Code (IPC), 1860 - Sections 406
AppellantRaj Kishore Mahapatra and ors.
RespondentNarasingh Mishra
Appellant AdvocateP.K. Dhal and ;S.C. Sahu, Advs.
Respondent AdvocateH. Kanungo, ;R.N. Mohanty and ;H.N. Kanungo, Advs.
DispositionRevision allowed
Cases ReferredPadma Chandriah v. Pamj
Excerpt:
..... - in case of deity, the position is on a different footing and the law is also well settled that all the marfatdars of the deity represent the deity as a whole and not in part according to one's own share in the property. but a criminal court, as well pointed out in the exhaustive analysis in chitaley and annaji rao's criminal procedure code, vol......order in view of the fact that the endowment commissioner decided that the deity was a private deity of the complainant's family; and that they also had theright to possess the deity for performing the seva puja; and because of the petitioners worshipped in a house on plot no, 2447.4. the above order was passed in a complaint case filed by one narasingha misra under section 406 of the indian penal code against these four petitioners on the allegation that they had taken away the above named idol, the family deity of the complainant, and did not return the same to the complainant's family for their performing the pancha dola jatra.5. while acquitting the accused persons the court below found as a matter of fact that the said deity was 'the joint property of both the parties' and that.....
Judgment:
ORDER

S. Acharya, J.

1. This is an application in revision against the order contained in the judgment in Complaint Case No. 97 of 1966 passed by Sri. P. C. Panda, Judicial Magistrate, 1st Class, Cuttack directing the accused persons, while acquitting them, to deliver physical possession of the idol of Sri Chandrasekhar Mohaprabhu along with His ornaments, clothings, seat etc. to the complainant for being worshipped in the house standing on plot No. 2447.

2. Mr. Dhal, the learned counsel forthe petitioners contended that the above mentioned order is illegal and unwarranted in view of the findings arrived at and observations made in the judgment of the said court.

3. Mr. Kanungo, learned counsel for the opposite party contended that the trial court was justified in passing the said order in view of the fact that the Endowment Commissioner decided that the deity was a private deity of the complainant's family; and that they also had theright to possess the deity for performing the Seva Puja; and because of the petitioners worshipped in a house on plot No, 2447.

4. The above order was passed in a complaint case filed by one Narasingha Misra under Section 406 of the Indian Penal Code against these four petitioners on the allegation that they had taken away the above named idol, the family deity of the complainant, and did not return the same to the complainant's family for their performing the Pancha Dola Jatra.

5. While acquitting the accused persons the court below found as a matter of fact that the said deity was 'the joint property of both the parties' and that the accused persons had a right to the Seba Puja of the deity as marfatdars. Regarding entrustment of the deity by the complainant to the accused the findings of the court below may be quoted as follows:

(i) 'It is doubtful if there was any entrustment with the deity by the complainant in favour of the accused persons......

(ii) ......it would rather be just to saythat Mahapatra family acquired a right to take the deity for six days for holding Dola Jatra and truly speaking there was no entrustment of the property by P. W. 1.

(iii) ......it cannot be said that complainant entrusted the idol for purpose of discharge of any trust.'

In paragraph 7 of the court's judgment, the observations of the trial court are as follows:

'In case of deity, the position is on a different footing and the law is also well settled that all the marfatdars of the deity represent the deity as a whole and not in part according to one's own share in the property. The only course open for the complainant is to file a civil suit for recovery of the possession of the deity, and also to get a declaration to the effect that Mahapatra family are only entitled to the possession of the image of the deity for specified period in a year so that it will be a legal contract, to be enforced in law. The dispute as it appears is a dispute of civil nature regarding the properties of the deity'.

On the above findings and observations of the court below, it is evident that there is a dispute between the rival parties claiming possession of the deity. This being so. it is not expected under the provisions of Section 517 of the Code of Criminal Procedure to try this dispute which is of a civil nature. Their Lordships of the Madras High Court in their decision reported in Muthiah Muthirian v. Vairaperumal Muthirian, AIR 1954 Mad 214 in quoting a passage from Chitaley and Annaji Rao's Criminal Procedure Code, observed as follows;

'But a Criminal Court, as well pointed out in the exhaustive analysis in Chitaley and Annaji Rao's Criminal Procedure Code, Vol. III, 4th (1950) Edn. at page 2862, is not expected, under the provisions of Section 517 to 'try' civil cases. It is not the function of a criminal court to decide nice questions involving principles of civil law, if there is a dispute between rival parties claiming a return of the property. It should not help a party whose object is to endeavour to obtain its judgment upon a question which ought to be determined in a Civil Court. Where, therefore, there is a 'doubt as to ownership' of property, or where a 'question of bona fide title' by purchase or otherwise arises, the duty of the criminal court is to leave the parties to their remedy in a civil suit.'

This view has been reiterated in a decision of this Court in Radhacharan Das v. Padma Charan Patnaik, (1967) 33 Cut LT 868. I would with respect quote a portion of paragraph 5 of the said decision which is as follows:

'The object of the section is to enable the Court to direct the property to be given to the person to whom it belongs, or to allow it to continue in the possession of the person in whose possession it was found. Criminal Courts are not expected to try civil cases. The section merely purports to provide a summary method for having the status quo ante. An order under this section does not decide the question of ownership of the property but merely decides the right to possession and the ownership is to be determined in the Civil Court'.

In a decision of the Patna High Court in Hari'har Singh v. Nilakanth Singh, AIR 1957 Pat 685 their Lordships accepted with approval the Madras High Court view in the following manner:

'It is observed in that case ILR 1950 Mad 916 = AIR 1927 Mad 797 that where the title to seized property is doubtful, it should be returned to the person from whom it was seized, unless there are special circumstances which would render such a course unjustifiable.'

The same view has been expressed by their Lordships of the Andhra Pradesh High Court in Padma Chandriah v. Pamj-womi, AIR 1960 Andh Pra 122 which is as follows:

'In such cases the proper procedure would be to adopt the normal course of returning the articles to the person from whom they were taken'.'

From all these decisions it is evident that Section 517 of the Code of Criminal Procedure merely purports to provide a summary method for maintaining the status quo ante, unless of course there are special circumstances which will render such a course unjustifiable.

6. The idol in this case has been with the petitioners since some time past, and such possession, in the context of the findings of the court below as discussed above, is not without any basis or right. This being so, the deity with the ornaments and articles belonging to him should be allowed to remain in possession of the petitioner. The rival claims of the opposite party to the ownership and possession of the deity, as has been held in the cases cited above, cannot be decided in this case, and therefore if he has any such right, he may seek his relief in a proper court of law.

7. In this view of the matter, the order passed by the court below directing the petitioners to hand over physical possession of the idol of Sri Chandrasekhar Mahaprabhu along with his ornaments, clothings, seat etc. available with the petitioners, in favour of the complainant is hereby set aside, and the revision is accordingly allowed.


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