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D.D. Nath Vs. Kanshi Ram - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1966CriLJ1444
AppellantD.D. Nath
RespondentKanshi Ram
Excerpt:
- orderj.n. bhat, j.1. this is a revision petition directed against an order of the learned sessions judge jammu dated 13.8.1965 whereby he has dismissed a revision petition presented by the petitioner in that case.2. it appears that in a complaint under section 407 cr.p.c. an application was made before the trial court of the a.d.m. jammu for disposal of 106 bales of wool which were entrusted in delhi on 16th march 1964 by the complainant to the accused for transport to srinagar and the consignee was the government woollen mills srinagar. according to the complainant the goods instead of being carried to srinagar and delivered to the consignee were retained at jammu by the accused against the express provisions of the contract. hence the complaint.3. the wool was seized by the court. an.....
Judgment:
ORDER

J.N. Bhat, J.

1. This is a revision petition directed against an order of the learned Sessions Judge Jammu dated 13.8.1965 whereby he has dismissed a revision petition presented by the petitioner in that case.

2. It appears that in a complaint under Section 407 Cr.P.C. an application was made before the trial Court of the A.D.M. Jammu for disposal of 106 bales of wool which were entrusted in Delhi on 16th March 1964 by the complainant to the accused for transport to Srinagar and the consignee was the Government Woollen Mills Srinagar. According to the complainant the goods instead of being carried to Srinagar and delivered to the consignee were retained at Jammu by the accused against the express provisions of the contract. Hence the complaint.

3. The wool was seized by the Court. An application was moved before the trial Court that the Government Woollen Mills Srinagar were pressing for the wool. The wool may be sent to the Government Woollen Mills and the sale proceeds thereof disposed of. The trial Court ordered the goods to be sent to the Government Woollen Mills Srinagar and further directed that the amount of the price of the goods shall be retained in the Court and payment of the same 'shall be made after the conclusion of the case to any party in proportion as it will be found entitled to.'

A security bond was further taken from the complainant for Rs. 20,000 because the accused had made an application that they were entitled to Rs. 20,000 as demurrage from the complainant for non-lifting of the goods to Jammu. Against this order of demanding a security bond from the complainant, the accused went in revision before the Sessions Judge. The learned Counsel, however, did not press this petition in revision which was consequently dismissed on 13.9.1965. Hence, the order for deposit of security to the extent of Rs. 20,000 became absolute. The complainant, however, has come up in revision to this Court against the original order of the ADM dated 9th August 65 and his case is that the money which would be realized as the price of the wool from the Government Woollen Mills should have been paid to the complainant and not retained in the Court till the disposal of the case. The learned Counsel appearing for the complainant states that there is no dispute about the ownership of these bales of wool and therefore, their price should be returned to the complainant and not kept in the Court till the disposal of the case, more so when the complainant has already been ordered to deposit a security bond for Rs. 20,000 which is the claim of the accused as demurrage in this case.

4. A preliminary objection has been raised by the learned Counsel for the respondent before me that the complainant has come direct in revision to this Court against the order of A.D.M. He should have first approached the Sessions Judge and if he were unsuccessful there, should have moved this Court. Mr. Inder Das appearing for the complainant says that he appeared before the Sessions Judge and he pressed his part of the case which is the subject-matter of the present revision, but after considering the case of the parties the learned Sessions Judge dismissed the revision petition.

5. I have read the order of the learned Sessions Judge. It is very brief. It simply states that the learned Counsel for the petitioner had made a statement at the bar that he did not want to press the revision petition which was therefore, dismissed. There is no mention about the case of the respondent before the learned Sessions Judge who is the petitioner before me, nor, it is conceded, was a separate application in revision preferred by the complainant before the Sessions Judge.

6. It is very well settled that the High Court, the Court of Session and the District Magistrate have concurrent jurisdiction to entertain revision petitions in criminal cases. But the rule of practice has been held to the effect that instead of approaching the High Court direct the lower Court must be first approached. This High Court has also held this to be in numerous cases a salutary practice and therefore, discouraged direct approach to the High Court in criminal revisions. Authorities that may be cited for this proposition are : : AIR1959AP377 . Therefore, the complainant has not chosen the proper forum for ventilating his grievance. He should have first approached the Sessions Judge and if he were unsuccessful there, then come to this Court.

7. This Court has inherent powers still to entertain a revision direct, even if the lower Courts have not been approached. But for adopting such a course there must be some extraordinary circumstance which would compel the High Court to interfere without the lower Court being approached. But in this case I am afraid there is nothing extraordinary about the facts of this case that the High Court should have been approached direct. On the other and on merits I find that the order passed by the A.D.M is perfectly correct.

Section 516-A of the Cr.P.C. deals with the disposal of property pending for trial in certain cases and it lays down 'when any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary order it to be sold or otherwise disposed of.

8. Under the provisions of this section, the trial Court has thought that the property will be subject to speedy and natural decay and it was otherwise also expedient to do so, the Court has ordered the property to be sold and disposed it of by sending it to the Government Woolen Mills at Srinagar. Along with this section, we have to read Section 517 of the same Code, which relates to the order of disposal of property regarding which an offence is committed. The opening words of that Section are: 'when an inquiry or trial in a criminal Court is concluded, the Court may make such order as it thinks fit for the disposal of the property.

When the provisions of Section 516-A are read with Section 517 of the Criminal P.C. it is abundantly clear that the Court cannot pass a final order for the disposal of the property or its cash equivalent in case it is converted into cash under the orders of the Court to any party before the trial or inquiry is concluded. In Section 516-A the words used are 'pending the conclusion, of the enquiry or trial' and in Section 517 the words are 'when the trial or inquiry is concluded'. These two provisions mean that the Court has the power to keep the property involved in a criminal case in the custody of somebody till the final disposal of the case, inquiry or trial, and any order about its being handed over to any party or otherwise disposed of can be passed only after the conclusion of the inquiry or trial. The Court has no power to finally hand over the property or its cash equivalent to a party in the case during the pendency of the trial or the inquiry.

9. The word 'concluded' has been interpreted in : AIR1950Cal369 . In that authority it has been held that the word 'concluded' in Section 517 has been used to mean conclusion after a full inquiry. The cancellation of proceedings under Section 145 cannot be considered to amount to conclusion of an inquiry. Hence where the Magistrate dropped the proceedings, he could not pass an order of disposal of the property under Section 517 in favour of either party. Similarly in AIR 1951 Madh B 154 where the trial could not be concluded owing to the death of the accused, it was held that the Magistrate had no jurisdiction to pass the order as regards the return of the property to either party.

10. The law therefore, is clear that the Magistrate could not pass a final order for handing over the money which would be recovered as the price of the 106 bales of wool from the Government Woollen Mills to the complainant. The revision is therefore, misconceived and is dismissed.


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