SRI ANOWARUDDIN CHOUDHURY Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE forensic fight in this case is for interim custody of an elephant. O.P. No. 2 bad lodged an ejahar at Hailakandi Police Station on 3.1.84 that an elephant named Jaymala, which belonged to him, had been forcibly removed by some persons by threatening the mahaut while it was working at Mathijurighat. The police registered a case under Section 384 IPC against four persons and in the course of investigation seized the elephant in question on 5.1.84 from the possession of the Petitioner. On the application of the Petitioner praying for its custody learned Magistrate passed an order on the body of the petition directing the Officer -in -charge of Hailakandi Police Station to give the elephant in his "Zimma". Next day, the informant (O.P. No. 2) filed a petition in the Court of the learned SDJM, Hailakandi, submitting that the ex parte order passed on 5.1.84, by the Munsiff -Magistrate without hearing him, was liable to be vacated and that the said elephant should be given in his Custody. The judicial investigation which followed upon this application and the order passed thereon, confirmed in revision by learned Sessions Judge, is the bone of contention in the petition filed in this Court.

(2.) ON both sides threshold objections have been raised in this case and I consider it appropriate to deal first therewith before proceeding to discuss on merit the submissions made by learned Counsel of the parties. Mr. P.C. Kataki, the learned Counsel for the Petitioner, challenges the validity of the judicial proceeding which ensued on the petition filed by O.P. No. 2. His submission is that the learned Sub -Divisional Judicial Magistrate had no jurisdiction to vacate the order passed on 5.1.84 and pass the fresh order on 17.1.84 by which he gave interim custody of the elephant to O.P. No. 2 subject, albeit, to his furnishing a bond in the amount of Rs. 50,000. On behalf of O.P. No. 2, Senior Counsel Mr. J.P. Bhattacharjee, as also Mr. C.R. De learned P.P., Assam, submits that the present petition in this Court is not maintainable. This submission is based on the premise that the impugned order passed on 17.1.84 being a non -appealable one and having been confirmed in revision this Court shall not interfere therewith in view of the provisions of Section 399(3) Code of Criminal Procedure.

(3.) IN support of their preliminary objection counsel for the Opposite Parties relied on a decision reported in : AIR 1979 SC 381, Jagir Singh v. Ranbir Singh wherein the Court observed that Section 397(3) was meant to prevent multiple exercise of the revisional power and to secure early finality to an order. The Court also held that in such a case the High Court could not also invoke its power under Article 227 of the Constitution because the discretionary power of superintendence thereunder was not meant to circumvent statutory law. To counter the weight of this authority from Petitioner's side reliance was placed on Madhu Limaye's case : AIR 1978 SC 47 to submit that in the instant case the application was made not only under Article 227 of the Constitution but also under Section 482 Code of Criminal Procedure and that ignoring the label this Court can grant relief to the Petitioner under Section 482 Code of Criminal Procedure Indeed, the Court held in the decision cited that power under Section 482 was exercisable despite the provisions of Section 397(2) but, submits learned Counsel for the Petitioner, on the same reasoning the expression "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court" of Section 482 operates also against the bar of Section 399(3). To me the legal position appears well settled by now. Whether or not the Court will exercise its inherent power under Section 482 would depend on the facts and circumstances of the case and Sections 399(3) or 397(2) does not debar a Petitioner to claim relief in an appropriate case from the High Court and, further, the label on the petition is not to be considered decisive of the matter. (See Rajkapur's case : AIR 1980 SC 258; also : AIR 1983 SC 67, Delhi Municipality v. Ram Kishan).