MOHAN SHANKAR GHAISAS Vs. NARAYAN SHANKAR POTDAR

JUDGEMENT

(1.) THIS is a Petition directed against the Order dated 1.4.1989 in Criminal Revision Application No.170 of 1988 on the file of the Sessions Judge, Pune. Heard the learned Counsel for the petitioner and the learned Addl. Public Prosecutor for the State-Respondent. The first Respondent has remained absent inspite of service of notice.

(2.) IT appears there was some dispute between the parties regarding a shop premises measuring 15' x 12' in House No.1041 Shukrawar Peth, Pune. Admittedly, the petitioner is a tenant of that house but according to the first Respondent, he is a sub-tenant of the suit shop premises under the Petitioner where he was running a library. According to the first Respondent, the Petitioner is stated to have broke-open the lock and took the possession of the shop premises on 8.3.1988. He is said to have given a complaint before the police but no action was taken. Then the first Respondent filed an application before the learned Magistrate on 8.3.1988, praying for issue of search warrant under Section 94 of the Code of Criminal Procedure. The learned Magistrate passed an Order allowing the application and issuing a search warrant. IT appears the search warrant was executed and some books and other materials found in that room were seized by the police. Then the present Petiitioer moved an application before the learned Magistrate for return of the seized goods, since he was in possession of the same. IT appears the learned Magistrate ordered for return of the seized goods to the Petitioner on his executing a bond. Accordingly, the goods were given to the Petitioner on his executing a bond. Thus, having come to know of the stay order, the first Respondent filed a Revision Application before the learned Sessions Judge, who has passed the impugned order by setting aside the Order of the learned Magistrate, dated 23.3.1988 in Misc. Application No.30 of 1988 on the file of the Court No.6 of the Judicial Magistrate, First Class, Pune and directed that the seized properties be returned to the first Respondent. The Petitioner has approached this Court challenging the Order of the learned Sessions Judge.

(3.) IN my view, the procedure adopted by the learned Magistrate in the first instance in issuing a search warrant cannot be approved. Similarly when the matter was taken in Revision before the learned Sessions Judge, there was nothing to show that a notice was issued to the Petitioner and he was heard before the learned Sessions Judge passed the impugned Order. The impugned order does not give us any indication about hearing both the parties. When rightly or wrongly there was an order in favour of the Petitioner passed by the learned Magistrate on 21.3.1988, that order could not have been set aside by the learned Sessions Judge without hearing the Petitioner. Hence on this ground itself, the impugned Order is liable to be set aside. Further, the impugned Order does not refer to the nature of dispute between the parties, the necessity for the search warrant and the necessity for modifying the order. The impugned order is a cryptic order and does not give us the detailed reasons which made the learned Sessions Judge to set aside the order of the learned Magistrate.