HASNAIN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is an application under Section 482, Criminal Procedure Code moved by one Hasnain, praying that the order, dated 15/1/1982, passed by the Magistrate and that of the Seventh Additional District and Sessions Judge, Deoria, dated 11/6/1982. (Annexure II and to the petition) be quashed and praying further that the two disputed bullocks be released in his favour.

(2.) The relevant facts of the case are that Smt. Nairunnissa, wife of Abid Ali, filed an execution application on 21/2/1979 for the enforcement of the order passed under Section 125, Criminal Procedure Code, against her husband, Abid Ali. The Magistrate acting under Section 125 (3), Criminal Procedure Code passed an order of attachment of the property of Abid Ali and the police in compliance of the said order attached a she-buffalo and two bullocks.

(3.) The present applicant moved an application before the Magistrate claiming the she-buffalo and the bullocks as his own and prayed for their release in his favour. The Magistrate directed an inquiry on this application and asked the parties to adduce their evidence. The parties adduced their evidence on affidavits of witnesses and filed documents. The Magistrate on 15.1.1982 released the she buffalo in favour of the applicant and ordered the auction of the two bullocks and he also ordered that the auction money be deposited in the court for being paid to Smt. Nairunnissa opposite party, towards the payment of her maintenance allowance. Aggrieved by this order of the Magistrate, the applicant preferred revision which was ultimately dismissed by the Seventh Additional Sessions Judge, Deoria. Aggrieved by the order of the Magistrate and the order of the Sessions Judge, Hasnain, the applicant has moved the present application under Section 482, Criminal Procedure Code and has contended firstly that the order of the Magistrate and that of the revisional Court is manifestly erroneous and illegal because the evidence adduced has not been properly and reasonably appreciated by the two courts below. A reasonable appreciation of evidence would lead to the conclusion that the bullocks belonged to the applicant and ought to be released in his favour. Secondly, it has been contended by the applicant that his claim for the bullocks could not be decided on affidavits though this contention has Dot been raised any where in his petition but his counsel based this argument on the observation, a legal point arises in the case whether the objection of Hasnain could be decided on affidavits made by Honble P. N. Goel, J. in his order admitting he present petition on 8.7.1982.