LAWS(ALL)-1985-2-21

BECHU LAL VISHWAKARMA Vs. GURMEET SINGH

Decided On February 04, 1985
BECHU LAL VISHWAKARMA Appellant
V/S
GURMEET SINGH Respondents

JUDGEMENT

(1.) This application under Section 482, Cr. P. C. has been filed for quashing the order dated 23.7.1984 passed by the Special Judicial Magistrate, Varanasi.

(2.) The brief facts for the purposes of deciding the present application are that a complaint was filed by opposite-party Gurmeet Singh against the applicant and another for having committed an offence under Sections 420, 406 and 504, I.P.C. which was registered as Criminal Case No. 220 of 1984 before the Special Judicial Magistrate, Varanasi. According to the complaint filed by the opposite party the allegation in a nutshell is that certain machinery and other parts were purchased by the applicant from the opposite party and the payment of the same has not been made. From the complaint it appears that the total value of the machinery and other parts which had to be paid by the applicant came to Rs. 16,665/-. The aforesaid machinery etc. seized from the possession of the applicant in pursuance of an application moved by the opposite-party. The applicant moved an application before the Special Judicial Magistrate for giving the aforesaid machines in the Supurdgi of the applicant. It may be mentioned that before giving of this application the Special Judicial Magistrate had given an order of giving the machinery in the Supurdgi of the opposite-party. However, the same has not yet been given in the supurdgi of the opposite-party as the applicant has moved a stay application for staying the operation of the aforesaid order and as stated above has also moved an application that the property be given in his supurdgi. The Magistrate by his order dated 23.7.1984 has ordered that the application moved by the applicant shall be disposed of at the time of the disposal of the case meaning thereby that the application will be dealt with at the time of conclusion of the trial.

(3.) The learned counsel for the applicant in this application has challenged the aforesaid order on the ground that the application moved by the applicant is under the provisions of Section 451 Cr. P. C. and the concerned Magistrate has illegally deferred the disposal of that application by his order dated 23.7.1984 till the time of conclusion of the trial. It has been argued that the powers conferred under Sections 451 and 452, Cr.P.C. had to be exercised at two different stages i.e. the power conferred under section 451, Cr. P. C. has to be exercised during the pendency of the trial for the preservation of the property and the power conferred under Section 452, Cr.P.C. has to be exercised for passing final order in respect of the case property at the conclusion of the trial. By passing the impugned order dated 23.7.1984 the Special Judicial Magistrate has in fact refused to exercise his jurisdiction under Section 452, Cr.P.C. which virtually meant that he will exercise his powers under Section 452, Cr.P.C. and not under Section 451, Cr.P.C.