YADAV RAM Vs. ASHOK DUBE

JUDGEMENT

(1.) The applicant has been summoned by the court of Metropolitan Magistrate, Raipurwa, Kanpur, by order dated 23.1.1982. The summons being not served, an order dated 6.8,1982 was passed summoning him for 23.9.1982. On 25.8.1982 an application was moved for search and seizure of the factory. Of this the applicant had no notice. The factory was given in the Supurdigi of one Mohammad Fahim. The Chief Metropolitan Magistrate later transferred the case to the Metropolitan Magistrate Siswamau. An objection was filed by the applicant that the factory, be released and the earlier order be set aside. That application has been rejected by the Metropolitan Magistrate, Siswamau, vide his order dated 6.11.1982 (Annexure 7 X, observing that until and unless all the documentary and oral evidence has been adduced by both the parties, it is not possible to give any verdict on the conflicting claims, and, consequently, the decision on releasing the attached property can be arrived only after evidence and the Magistrate fixed 10.12.1982 for evidence under Section 244, Criminal Procedure Code. As he has fixed for evidence under Section 244 Criminal Procedure Code, it implies that he has deferred the decision until the evidence in the complaint case itself.

(2.) The applicant has stated that the complaint (Annexure 1 to the affidavit) and all the proceedings in consequence of the complaint be quashed. Affidavit and supplementary-affidavit have been filed in support of the claim. The other side has filed counter-affidavit and supplementary-counter-affidavit. Both sides have also made annexures with the affidavits and counter-affidavits to support their respective claims. Annexure 1 is the complaint itself and Annexure 4 is the order of the Magistrate directing issue of search warrants and also directing attachment of the parts, accessories, and plants of the factory with a further direction that they may be given in the Supurdigi of a reliable person.

(3.) The first contention raised is that the matter related to the territorial jurisdiction of Metropolitan Magistrate, Siswamau, and the Metropolitan took cognizance of the complaint and the order summoning the applicant as well as the order for the search and seizure of the factory and its ultimate attachment are all bad. The second contention raised is that the complaint is simply by way of harassment of the applicant and actually the dispute is purely a civil dispute and criminal action is an abuse of the process of law. The third contention raised is that the matter did not fall under section 93(1)(b) of the Criminal Procedure Code, because the person in whose possession the thing lay was known and not unknown, and, consequently, a notice should have been issued first under section 91(1) Criminal Procedure Code directing any search of seizure. The last point urged is that in any case when the order of seizure and attachment was made ex parte, the applicantTs objection filed later should have been heard on merits rather than deferring the matter to record all the evidence in the trial itself.