KISHANLAL SAHU Vs. MADHABANANDA PANI

JUDGEMENT

(1.) THE defendant is the petitioner. The facts that gave rise to this revision petition may briefly be stated as follows : there was some dispute between the parties over a shop at Chanclbali and a proceeding under Section 145, Criminal P. C. was also pending. In the meanwhile, the plaintiff-opposite party filed a suit (O. S. No. 4 o 1961-III) in the Court of the Subordinate "judge of Balasore. After filing of the said suit, the plaintiff made an application for appointment of a pleader-commissioner for preparing an inventory of the articles and the account books in respect of the disputed shop at Chandbali. A pleader commissioner was appointed and he made a list of the said articles and forwarded the same to the court and kept the articles in the custody of the plaintiff. On the petitioner's furnishing security the court directed the return of the said articles to him. Subsequently the trial Court directed another pleader-commissioner to go to the shop and take charge of the articles from the plaintiff and to hand them over to the defendant-petitioner. The pleader-commissioner is said to have issued notice to the plaintiff to hand over the key of the shop and to render him necessary assistance so as to enable him to take charge of the articles and hand over the same to the defendant. The plaintiff, however, did not cooperate with the Commissioner, nor did he hand over the key to him. The fact being of ported to the Court, the Court authorised the commissioner to break open the lock of the shop house and make over the articles found in the shop to the defendant-petitioner. The commissioner again went to the spot and found that the plaintiff still avoided him. So he broke open the lock, made a list of the articles as found in the shop and handed over the articles to the petitioner. It was however, discovered that the articles worth about Rs. 15,000/- as compared to the list prepared by the 1st commissioner were missing. The petitioner, thereupon made an application to the Court on 13-71961 to file a complaint against the plaintiff under Section 183, I. P. C. No order was passed on this petition.

(2.) ON 9-8-1961 the defendant put in another petition before the trial Court to prosecute the plaintiff under Section 409, Indian Penal Code, and also to take action for contempt of court against him, the allegation against him being that out of the articles entrusted to him by the court, he misappropriated articles worth about Rs. 15,000/- and also did not lend necessary assistance-to the pleader commissioner. On 9-7-1982, the trial Court rejected the application. Against this order a miscellaneous appeal was filed before the District Judge, Balasore who by his order dated 9-8-1963 dismissed the appeal and confirmed the order passed by the trial court, with slight modification which is not relevant to the present revision. Against the said order, a revision application under Section 439 Cr. P. C. was filed, but later on the said Criminal Revision was converted to a Civil Revision as it was found that Section 476, Cr. P. C. had no application to the proceedings before the that Court, and the appeal before the Dist. Judge was not competent either under Or. 43, C. P. C. or under Section 476-D, Cr. P. C. Hence the Revision petition filed before this Court was treated as one under Section 115, C. P. C. and accordingly has come up for hearing as a Civil Revision.

(3.) BOTH the courts held that there was no prima facie case for sanctioning the prosecution of the plaintiff under Section 409 I. P. C, Further Section 409 is not one of those sections for prosecution under which sanction of the Court is required to be obtained under Section 476, Cr. P. Code.