TATA ENGINEERING AND LOCOMOTIVE CO LTD Vs. STATE

JUDGEMENT

(1.) TATA-ENGINEERING and Locomotvie Company Ltd. , hereinafter to be referred to as Telco for the sake of brevity,has come up before us in revision filing the present petition under section 401 read with section 482 cr. P. C. to call in question the orders dated. 21. 1,85 and 20. 2. 85 passed by the learned' Sub-Divisional Magistrate, Ghatial, district Midnapur, in Misc. Case no. 6 of 85 under section 94 of the Code of Criminal Procedure, 1973.

(2.) - The antecedent facts may be briefly stated as follows. On 21. 1. 85 the opposite party No. 2 before us filed a petition under section 94 Cr. P. C. before the aforesaid Sub-Divisional Magistrate. The allegations were that he was the owner of the Tata Mercediz Truck manufactured in the year 1982 bearing no, WTW 1312, having purchased the-same under a Hire Purchase Agreement, for the purpose of his wholesale business in rice. His further allegation was that on 20. 1. 85 his driver Swadesh Dolui after delivering rice to a dealer in Tamluk was coming back driving the truck with rupees eighteen thousand in cash, all Bengal Road Permit, insurance certificate, blue book and tax token. When the truck reached the crossing of Moirapukur junction near Ghatal, Mr. Men-0n of Bhandari Sales Corporation, Head office Bhandari Building, Jhapotapur, p. O. and P. S. Kharagpur, District Midnapore, described as opposite party in the petition along with a number of toughs armed with weapons surrounded the truck and assaulting the driver of the truck, robbed the driver of possession of all the money and papers aforesaid and the truck itself and drove away the track towards Chandrakona. The driver informed the petitioner about the occurrence and after making inquiries the petitioner learnt that after having taken away the truck by committing theft the opposite party kept the truck concealed in the building of the opposite party aforesaid. In the aforesaid circumstances the opposite party No. 2 before us, viz. , narayan Chandra Karmakar, the petitioner before the learned S. D. M. prayed for - issue of search warrant under section 94 of the Code and handing over this truck with papers and 'documents to the petitioner after its recovery. The learned Magistrate granted the prayer. The truck was seized by a police officer attached to Ghatal P. S. on 22. 1. 85 and handed over to Narayan Karmakar on a bond of rupees one lakh fifty thousand on condition to produce the truck on call. Thereafter Telco filed a petition before the S. D. M. on 25th January 1985 principally for review of the order of the S. D. M. dated 21. 1. 85 and for restoring the truck to their possession. In. its petition Telco alleged that M/s Bhandari Sales Corporation of Jhapatpur, p. S. Kharagpur was one of their authorised dealers and that they had entered into an agreement with Narayan karmakar on 7. 2. 83 regarding the truck aforesaid and the said agreement known as Hire Purchase Agreement stipulated various payments on different dates, details of which need not be stated now. The allegation of Telco was that Karmakar having defaulted in payments stimulated under the agreement they were entitled to re-take the truck in dues tion in their possession and they had in exercise of that right taken the truck in their possession. They alleged that the petitioner Karmakar' had supressed material facts and obtained an order from the learned Magistrate fraudulently. The learned Magistrate, after hoarding both the parties, by order dated 20. 2. 1985 dismissed the petition filed by tolco refused the prayer made by them. The principal reason for dismissing the petition as given by the learned magistrate is that under section. 362 cr. P. C. he could not review his own order. The other reasons are that in view of the facts and circumstances placed before him be was justified in passing the order dated 21,1. 85.

(3.) FOR expeditious disposal of i (he petition we did not call for the' records of the case from the court below, We treated the petition as a contested petition. Mr. Biman Kanti Basu the learned Advocate for the petitioner Telco vigorously assails the propriety ar|d* correctness of the order of the learned Magistrate. He further contends that the petition filed on behalf of Telco before the learned S. D. M. for reconsideration of his order was virtually an application under section 457 of the Cr. P. C. Mr. Basu hands over to us Xerox copies of the Hire Purchase Agreement and contends that Mr. Karmakar had suppressed material facts from the Court, Mr. Karmakar, according to the agreement, was simply a bailee, but the vehicle in question continued to be under the Ownership of Telco and there was no occasion for the issue of such warrant under section 94. Mr. Basu further contends that when exercise of power under section 94 of the Code by the Magistrate was not lawful the learned Magistrate should have made over the truck in question to Telco in exercise of" power under section 457 of the Code.