BALAMAL MATLOMAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The charge against one Ibrahimkhan Fazalkhan in Criminal Case No. 1201 of 1964 in the Court of the Chief City Magistrate Ahmedabad was that he had committed theft of 5 catch pit jails ordinarily known as covers of the gutters of the Municipal Corporation of Ahmedabad in the early morning of 1-10-1964 so as to be liable for an offence under sec. 379 of the Indian Penal Code. The accused was found going in auto rickshaw bearing No. GTD 285 wherein he had put the said stolen property. He was stopped and as he could not explain about the possession of those catch pit jails that property as also the auto rickshaw came to be attached under a panchnama made in respect thereof. During that trial one Gokaldas Kanjibhai was examined as a witness on behalf of the prosecution as the owner of that auto rickshaw. According to his evidence he had given that rickshaw to one Babubhai Noorbhai on hire on 30-9-1964 with instructions to return the same to him at Ahmedpura before the next morning. Some time after he learnt that his rickshaw was lying at the Kalupur Police Chowky. Babubhai also informed him about the rickshaw being attached by the police. In that case the learned Chief City Magistrate Ahmedabad found the accused guilty for an offence under sec. 379 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three months and to pay a fine of Rs. 200/ or in default to suffer rigorous imprisonment for one month. At the same time he passed another order whereby the muddamal auto rickshaw before the Court was directed to be confiscated to the State. Aggrieved by that order passed on 21-4-1965 the accused had preferred an appeal and it came to be dismissed.

(2.) During the pendency of that trial however that Gokaldas Kanjibhai had preferred his claim in respect of this auto rickshaw and the same was rejected. That Gokaldas had also filed an application in revision No. 181 of 1965 against that order of confiscation passed by the learned Magistrate in this Court and on that application the following order was passed by Raju J. on 5-7-1965 :-

(3.) The application discloses two prayers. The first is that the order passed on 21-4-1965 by the learned Magistrate regarding the disposal of the auto rickshaw the muddamal property before the Court in Criminal Case No. 1201 of 1964 was illegal and improper and that it should be set aside. By the second prayer he claimed to be entitled to have that rickshaw restored to him he being its owner and if necessary by holding an inquiry in respect thereof. However before this Court Mr. Acharya the learned advocate appearing for him has claimed to be entitled to its possession on the basis of hire purchase agreement entered into between him and Gokaldas and as it was standing in his name before the registration authority before it came to be attached by the police. It was contended by Mr. Acharya that since he was not a party to the proceeding in which the order of confiscation of auto rickshaw came to be passed by the learned Magistrate under sec. 517(1) of the Code he could not file any appeal against that order and as soon as he came to know about it he approached the High Court for setting aside the same so as to enable the trial Court to make suitable inquiry as to whom the auto rickshaw should be returned under sec. 517 of the Criminal Procedure Code. Mr. Acharya's contention then was that since it was the view of the Court that before filing an application in revision against that order he should have first approached the original Court which passed the order and on that basis or rather feeling that view to be correct he withdrew his application by obtaining permission from the Court so as to enable him to present an application in the trial Court. His first contention was that any order passed on his application is revisable by this Court having powers to revise the same if found to be illegal or improper and unjust in the circumstances of the case. According to him the order can hardly be justified in law inasmuch as the use of rickshaw cannot be called use thereof in commission of an offence of theft by the accused and that again when it belongs to some one else who cannot be said to have known that he would so use. On the other hand it was pointed out by Mr. Thakkar the learned Assistant Government Pleader for the State that this petitioner has no right to present any such application to the Court below for the simple reason that the Court had already passed an order directing confiscation of the muddamal property in the case and since his remedy against that order was only before the Superior Court such as the Appellate Court or Revisional Court and as he had already availed of that opportunity and when his application had come to be rejected by the High Court on 8-9-1965 he cannot reagitate the same question even if the order is found to be illegal or unjust and more particularly after the period of limitation under article 131 of the Limitation Act was over.