ASHOK KUMAR Vs. STATE

JUDGEMENT

(1.) These petitions. Cr. M(M) 652/83, by Ashok Kumar, under Section 482 of the Code of Criminal Procedure, and Cr. R. 150/83, by Sunil Gupta and another, under Section 397 read with Section 401 of the Criminal Procedure Code, arise out of a contest between the petitioners for the temporary custody of an imported VCR during the pendency of prosecution arising out of FIR No. 79/83 todged by Ashok Kumar alleging theft to to his VCR of which he suspected, according to the FIR, Sunil Gupta s/o Suresh Paul Gupta. Ashok Kumar resides in House No. J-59, Rajauri Garden and Sunil Gupta and his father reside in J-60, Rajauri Garden and are, therefore, the next-door neighbours. Pursuant to the investigation, the VCR was recovered from the house of Sunil Gupta. Ashok Kumar sought its temporary custody from the court of the learned Metropolitan Magistrate and by an order of April 27, 1983, the learned Magistrate, on a perusal of the police report, directed that the same be given on supurdari to Ashok Kumar in the sum of Rs. 20.000.00 with a direction to produce it as and when required. Sunil Gupta, who had also sought its temporary custody, challenged the order by a revision in the Sessions Court and the learned Addl. Sessions Judge by an order of April 28, 1983 declined to interfere. Sunil Gupta challenged this order in his petition to this Court (Cr. R. 150/83) and while admitting the petition, this court stayed the operation of the order of the learned Metropolitan Magistrate, by an order of May 19, 1983. Meanwhile, pursuant to the Metropolitan Magistrate's order, Ashok Kumar had submitted the necessary bond and the delivery of the VCR had been made to him in terms of the order of the learned Metropolitan Magistrate made on April 27, 1983. When an intimation of the stay order was received by learned Metropolitan Magistrate, he made another order on May 25, 1983, apparently behind the back of both the parties, whereby he cancelled the bond and directed the police "to get the VCR in custody". The learned Metropolitan Magistrare apparently intended to give effect to the stay order of this court even though the order sought to be stayed had already been carried out.

(2.) The only question for consideration is as to the party who would in the circumstances be entitled to a temporary custody of the VCR and as to the conditions subject to which such an order should be made

(3.) The VCR is an imported item. Neither of the parties claim to have imported it. Both claim to have purchased from someone or the other who had legally acquired it from some one who had made its legal importation, The investigation has since concluded and a challan is scheduled to be filed shortly, if it has not been already filed. Counsel for the Delhi Administration, to whom notice was also issued, disclosed that the documents relied upon by both the parties in support of their competing claim of ownership were found to be either "forged or discrepant" and there is, therefore, considerable doubt if the VCR had been legally acquired by either of the parties. The learned Metropolitan Magistrate gave its custody to Ashok Kumar apparently because Ashok Kumar had complained that it had been stolen from his house and had suspected Sunil Gupta and the VCR was recovered from the house of Sunil Gupta claims that the report was a false one and had been made to falsely implicate him and that Ashok Kumar had known that Sunil Gupta had the VCR.