DASARATHI PARIDA Vs. SATYABADI PRADHAN

JUDGEMENT

(1.) THIS revision is directed against the revisional order of. the learned Sessions Judge, Puri, reversing the order of the C.J.M., Puri giving custody of a pump set to the Petitioner on a petition Under Section 94, Code of Criminal Procedure on the condition that the same shall continue in his custody in accordance with the terms of the agreement between the Petitioner and the opposite party until a competent court decides the agreement to be not genuine with the further direction that the pump set should be returned to the opposite party if the loan of Rs. 3000/ - incurred by him is repaid.

(2.) THE facts shortly, stated are that the opposite party filed a petition under Section 94, Code of Criminal Procedure before the G.J.M., Puri stating that be had purchased a pump set availing an agricultural loan from the Puri Co -operative Land Development Bank and was using it for his agriculture purpose. The Petitioner approached the opposite party for availing the services of the pump set to irrigate his Patol field. The opposite party hired out the pump set to the Petitioner on 1 -2 -1984 for 15 days on a charge of Rs. 100/ - per day. When the opposite party approached the Petitioner on 16 -2 -1984 for return of the pump set and for payment of the hire charges, the set was not handed over to him and instead he was threatened with assault and was abused for which he came to understand that the Petitioner bad committed theft of the pump set and would not return it to him. 00 such petition, the learned G.J.M. recorded the statement of the opposite party on solemn affirmation and recorded an order on 22 -2 -1984 that the facts stated on oath made out a case of a commission of offence under Section 406 I.P.C. and hence directed issue of a warrant for recovery of the machine. In execution of the search warrant the pump set was seized on 24 -2 -1984. The set having been so seized the Petitioner moved an application under Section 451 Code of Criminal Procedure before the G.J.M. on 27 -2 -1984 bringing to his notice the facts that the opposite party having been in need of money had "approached his son for a loan of Rs. 3000/ - offering the pump set as a pledge and accordingly an agreement was executed by the opposite party on 13 -1 -1984 under which he handed over the pump set to the Petitioner on receiving the loan amount. It was the condition that the pump set was to be returned on the clearance of the loan. A photo -stat copy of the agreement was also filed along with the petition. The matter was considered by the C.J.M. who by his order passed on 16 -3 -1984 held that though the title of the pump set rested with the opposite party yet the Petitioner had the right to possess it on account of the agreement and hence issued the direction as referred earlier. In the revision preferred by the opposite party the learned Sessions Judge reversed the order of the C.J.M. being of the view that prima facie the opposite party being the owner of the pump set it should be allowed to remain in his custody pending determination of the genuineness of the agreement and the remedies available thereunder and directed the Officer -in -charge of Sadar Police Station to hand over the pump set to the opposite party.

(3.) EVEN though such submission fails, yet I find that the order of issue of search warrant was otherwise vitiated being not one as contemplated under Section 94, Code of Criminal Procedure at all. Undoubtedly the learned Magistrate exercised powers under that section as would appear not only from, the petition but also from the search warrant issued which was in Form No. (M)35 of the G.R. and C.O. (Criminal). Section 94, Code of Criminal Procedure so fat as relevant for the propose of this case comes into operation if the Magistrate has reason to believe upon an information and after such enquiry as he thinks necessary that any place is used for deposit or sale of the stolen property in which event, he may issue a warrant authorising the officer to carry out the functions as directed therein. The pre -conditions thus to be satisfied before a warrant is issued are that the Magistrate must have satisfaction that the place in respect of which search, is directed is used for deposit or sale of stolen property. Unless the Magistrate has reason to believe that the place is being so used, he would have no jurisdiction to issue a search warrant. The very order of 22 -2 -1984 of the learned C.J.M. shows him to have been satisfied that an offence under Section 406, I.P.C. had appeared to have been committed. Nothing was recorded that he was of the view of any offence under Section 420. I.P.C. to have been committed and hence initially lacked jurisdiction to exercise the power under Section 94, Code of Criminal Procedure.