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Hrishikesh Ghose Vs. R.P. Michael - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal45
AppellantHrishikesh Ghose
RespondentR.P. Michael
Cases ReferredBrojendra Chandra De v. K.S. Sama
Excerpt:
- .....the complainant prayed for a search warrant to recover the bus. on this complaint the learned magistrate passed the following orders : 'complainant examined. issue a search warrant for bus. if seized, make over to petitioner on bond of rs. 1000.' the bus apparently was seized and made over to the petitioner, the opposite party in this rule, as directed. then on 19th may following a second petition was made before the magistrate in which it was stated that the petitioner (the opposite party here), was not anxious to proceed further with the case, but as the accused objected to the bus being given to the opposite party on the ground that no offence had been proved against the said accused the petitioner (opposite party here), asked for process under section 406, i.p.c. it is.....
Judgment:

Bartley, J.

1. This rule was issued upon the Chief Presidency Magistrate, Calcutta, to show cause why an order made by him on 19th May under which he directed that a certain bus would remain with the complainant, the opposite party in the present rule, should not be set aside. The facts of the case are simple, and we think that the law is the doctrine that the Court will not permit the use of the processes of the Criminal Court in order to enforce a purely civil right. The petitioner in this rule entered into a hire-purchase agreement with the opposite party to buy a motor bus. Amongst the stipulations in the hire-purchase agreement, it was laid down that in default of payment of any instalment the owner firm could seize the bus and determine the agreement. There was a further clause in the agreement that the purchaser should notify any change in the address of the garage where the bus was kept. On 3rd May last a representative of the complainant firm made a complaint to the Chief Presidency Magistrate, the gist of which was that the petitioner here had defaulted in payment of his instalments. He refused either to pay or to return the bus, and had removed the bus from the address where it was originally kept, without notice to the complainant. The petitioner had already defaulted to the extent of Rs. 1665 and evidently did not intend to pay. In the above circumstances the complainant prayed for a search warrant to recover the bus. On this complaint the learned Magistrate passed the following orders : 'Complainant examined. Issue a search warrant for bus. If seized, make over to petitioner on bond of Rs. 1000.' The bus apparently was seized and made over to the petitioner, the opposite party in this rule, as directed. Then on 19th May following a second petition was made before the Magistrate in which it was stated that the petitioner (the opposite party here), was not anxious to proceed further with the case, but as the accused objected to the bus being given to the opposite party on the ground that no offence had been proved against the said accused the petitioner (opposite party here), asked for process under Section 406, I.P.C. It is to be noted that not even at this stage of the proceedings did the learned Magistrate issue any process in connexion with the criminal offence alleged. On that petition the learned Magistrate remarked that in his opinion there was good reason

to hold that the complainant's petition for seizure of the 'bus was justified. The opposite party admittedly did not pay many months dues on the contract, and further removed the 'bus out of Calcutta without notifying the petitioner's firm. In these circumstances the petitioner was justified in suspecting dishonesty and thinking' that an offence had been committed. The 'bus would remain with the petitioner.

2. It seems perfectly clear to us that the order of the learned Magistrate was made without jurisdiction. The case is one of breach of a hire-purchase agreement and is not a criminal matter at all. The complainant firm have their rights under the contract into which the petitioner entered with them, and those rights can be enforced in the ordinary way by an action in the Civil Court. The whole case appears to us to be exactly of the same nature as the case in Brojendra Chandra De v. K.S. Sama : AIR1931Cal455 in regard to which Rankin C.J. remarked 'that the whole complaint from beginning to end was a device to get possession of the bus.' In the circumstances the present rule must be made absolute. The order passed by the learned Chief Presidency Magistrate is set aside, and the bus must be returned to the custody of the person with whom it was originally found. The opposite party in the present rule will then be at liberty to pursue his remedies either in the Civil Court, or otherwise according to the terms of the contract between the parties.

Khundkar, J.

3. I agree.


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