DAKHINI PRASAD SRIVASTAVA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS revision is directed against the order and judgment dated 19-91977 of Additional Sessions Judge, Allahabad in Criminal Appeal No. 94 of 1977, setting aside the order of the Additional Chief Judicial Magistrate dated 19-5-1977, by which he had ordered that Ambassador Motor Car No. UTB 9376 would be released in favour of Dakhini Prasad Srivastava, on his executing a bond for Rs. 10,000. 00 with condition to produce the car if and when required by the authorities.

(2.) THE facts giving rise to this revision are as follows : On 16-9-1976 at 11. 40 P. M. Sub-In-spepctor Sri Chandra Shekhar Sharma along with Constable Pashupat Nath while patrolling on Zero Road found an Ambassador Car No. UTB 9376 lying in the lane infront of the roadways bus stand without any care and owner. He considered the car to be an abandoned one and seized it and brought it to the Police Station Kotwali and made an entry in the G. D. report No. 79. On 17-9-1976 the present petitioner, Dakhini Prasad Srivastava made an application Under Section 457, Cr. PC claiming the car to be his and requested that it may be given in his custody. The Magistrate called for the police report and fixed 20-9-1976 for the disposal of that application. On that very day another application was moved by Hari Babu, opposite party claiming that that car belonged to him and the same be given in his custody. The report of the Station Officer was called for on the basis of that application and the same was ordered to be put up for disposal on 18-9-1976. On 18-91976 on the basis of the report of the Sub-Inspector, an ex parte order was passed ordering that the car be released in favour of the owner on giving proof of registration in his name on furnishing security of Rs. 5,000. 00. It appears that on the basis of that order possession of the car was taken by Hari Babu, but he subsequently brought it back and returned it to the police station as his surety had withdrawn and the surety was discharged. On 20-9-1976 the present revisionist brought it to the notice of the Magistrate that his application remained undisposed of. The learned Magistrate then ordered that the order passed by him on 18-9-1976 was stayed and that both the parties should produce evidence in support of their respective claim. After hearing both the parties and considering the entire evidence brought on the record, the learned Magistrate passed the order dated 19-5-1977 that the car would be released in favour of the present revisionist, Dakhini Prasad Srivastava on his executing a bond of Rs. 10,000. 00. Hari Babu then filed an appeal against this order and that appeal was allowed by the learned Sessions Judge by the impugned order dated 19-9-1977, Feeling aggrieved Dakhini Prasad has filed this revision.

(3.) LEARNED counsel for the applicant has argued that no appeal lay against the order of the Magistrate and as such the order passed by the learned Sessions Judge in appeal is without jurisdiction. There is certainly force in this argument. The order was passed Under Section 457, Cr. PC The only provision for filing an appeal is Under Section 458 (2), Criminal P. C. but that obviously confines itself to the order Under Section 458 (1), Criminal P. C. Section 458, Cr. PC reads as follows: 458. (1) If no person within such period establishes his claim to such property, and if the person in whose possession such property was found is unable to show that it was legally acquired by him, the Magistrate may by order direct that such property shall be at the disposal of the State Government and may be sold by that Government and the proceeds of such sale shall be dealt with in such manner as may foe prescribed. (2) An appeal shall lie against any such order to the Court to which appeals ordinarily lie from convictions by the Magistrate. There is thus general provision for filing appeal against every order passed Under Section 457, Cr. PC The learned counsel for the opposite party, however, argued that the order passed by the Sessions Judge may be treated as an order passed by him in his revisional jurisdiction. The learned Sessions Judge has made a reappraisal of the entire evidence. It is difficult to hold that he would have given the same decision in case he was dealing with the case as a revision and not as an appeal. learned counsel for the opposite party has argued that this Court is now seized of the entire matter and this Court can itself set aside the order of the Magistrate, if it is satisfied that it is illegal and improper and based on misreading of evidence. There can certainly be no limit to the powers of this Court in this respect.