OM PRAKASH SHARMA Vs. RAMKISHAN AGARWAL

JUDGEMENT

(1.) THE petition under Section 397/401 Cr. P. C. is directed against the order dated 21 -11 -80 passed by learned Addl. Sessions Judge, Gauhati in Misc. Appeal No. 24 (K -4) of 1979 dismissing the appeal and upholding the order dated 29 -6 -79 passed by the learned Judicial Magistrate, Gauhati under Section 452 Cr. P. C. in case No. C. R. 667 C of 1975 by which the learned Judicial Magistrate rejected the petition of this petitioner for having custody of the vehicle involved in the case.

(2.) VEHICLE No. ASK -7891 (truck) was purchased by and registered in the name of Bhawarlal Sharma who died in an accident in the midst of the litigations regarding the vehicle as narrated below. The vehicle was acquired by late Sharma under hire purchase agreement with a firm styled as M/s Kamal Trading Co. of which the present petitioner Om Prakash Sharma is a partner. It is the case of the Kamal Trading Co. that late Sharma failed to abide by the terms and conditions of the hire purchase agreement and the matter was referred to arbitration in Award Case No. 16 of 1975 in the Calcutta High Court and in that case M/s Kamal Trading Co. was declared as lawful owner of the vehicle and entitled to its possession. Meanwhile, late Sharma lodged a complaint which led to start of Case No. C. R. 517/75 in the court of the Judicial Magistrate, Gauhati against some other persons under Section 409/379 IPC regarding the vehicle which was seized by the Police and late Sharma obtained custody thereof as ordered by the Court on 13 -5 -75. Later, in the aforesaid Award Case, vide order dated 20 -5 -75 passed by the Calcutta High Court, the present petitioner was appointed as receiver of the said vehicle. As this order was brought to the notice of the learned Judicial Magistrate, Gauhati, he modified the order directing the vehicle to be given to the custody of the petitioner (Om Prakash Sharma). In that case, the accused persons were also discharged. O. P. Ramkishan Agarwal lodged a complaint before another Judicial Magistrate, Gauhati against late Sharma under section 420 IPC. It was Case No. C. R. 667 of 1975, and the petitioner was allowed custody of the vehicle. Ultimately, the accused in that case was acquitted but the learned Magistrate did not pass any order under Section 452 Cr. P. C. Hence, the vehicle continued to remain in the custody of the O. P. Although the learned Magistrate did not make any record to that effect, perhaps he did not make any order due to the fact that meanwhile the O. P. Ramkishan Agarwal instituted a civil suit in the Court of Sadar Munsiff, Gauhati which was T. S. No. 71/75. On his prayer the learned Munsif issued injunction against the defendants, one of whom was M/s Kamal Trading Co. and in favour of the plaintiff O. P. However, the order of injunction was vacated by the learned Court against which there was an appeal (Appeal No. 2 of 1976). The appeal was also dismissed. Meanwhile, Bhawarlal Sharma died in an accident and there was no further claim on his behalf regarding the vehicle. Afterwards, a petition was filed on behalf of M/s Kamal Trading Co. under Section 452 Cr. P. C. for disposal of the vehicle in connection with the case No. C. R. 667/75. In that petition the order passed in the Award Case by the Calcutta High Court was referred to. The learned Magistrate after hearing both sides, dismissed the application and consequently the vehicle remained in possession of the present O. P. In Appeal the learned Addl. Sessions Judge upheld the order passed by the learned Magistrate.

(3.) IN this petition it has to be seen whether any illegality or material irregularity has been committed by the learned courts below in passing the impugned order. It is found that the learned appellate court in the appeal under Section 454 Cr. P. C. took into consideration all the aspects of the matter and passed the impugned order. Learned counsel for the petitioner Mr. Bhatra referred to Criminal Case No. 517/75 and submitted that at the end of the inquiry the learned Magistrate passed the order regarding custody of the vehicle in favour of the present petitioner. While that order still remains in force it has to be given effect to on priority basis inasmuch as the petitioner did not get possession of the vehicle in pursuance of that order. But it is found that the learned Magistrate in that case did not hold any inquiry as envisaged under Section 452 Cr. P. C. It was rather an order passed under Section 451 Cr. P. C. As the order of the Calcutta High Court was referred to before him he simply modified his earlier order passed in favour of late Sharrna, the. complainant and in view of the order of the arbitration case, directed the vehicle to be given to the custody of the petitioner. As pointed out by the learned Court below, the petitioner was not a party in that case. So, it cannot be said that there was an inquiry or trial in the said criminal case. The term "concluded" as found under Section 452 Cr. P. C. means conclusion after full inquiry (D. D. Nath v. Kanshi Ram, AIR 1966 Jand K 143 : (1966 Cri LJ 1444)). There is no material brought to the notice of the court as to whether the learned Magistrate commenced the inquiry at all in that case. The term "inquiry" is defined under Section 2(g) Cr. P. C. wherein it is laid down that "inquiry" means every inquiry other than a trial conducted under the Code by a Magistrate or Court. This refers to the inquiry about the subject -matter of the case. There is no material to think that the learned Magistrate embarked on any inquiry regarding the complaint in that case. So, the order passed by him in favour of the present petitioner cannot be one passed under Section 452 Cr. P. C.