SAHIRUDDIN LASKAR Vs. AZIRUDDIN LASKAR

JUDGEMENT

(1.) This Revision Petition is so preferred U/ S. 397 read with Section 482 Cr. P.C. against the JUDGMENT & ORDER dated 18.12.91 passed by the learned Sessions Judge, Cachar, Silchar in Crl. Appeal No. 8(1) of 1991 by virtue of which the learned Sessions Judge set aside the JUDGMENT & ORDER of the learned CJM, Silchar, Cachar passed in GR No. 663/89 directing to make separate enquiry U/S. 452 Cr. P.C. with regard to the disposal of the property, i.e., the elephant 'Lakhimala' by name at the conclusion of the trial.

(2.) Mr. N. Choudhury, the learned counsel for the petitioner and Mr. H.R.A. Choudhury, the learned counsel for the opposite party are heard at length.

(3.) Mr. Choudhury, the learned counsel for the petitioner giving short history of the case for better appreciation of the case, has submitted that the present petitioner is the owner of the elephant named above so found missing from the work site which was so located at the fag end of the year 1988 near Maruachera in the district of Cachar with one Mayub Ali for which though the grazing permit was in the name of the petitioner but it was wrongly made over by Shri Ali to one Aziruddin. The said elephant later on was produced before the O.F.O. through one Abdul Rahman Majumdar and on 6.2.89 the learned CJM granted interim custody of the said elephant to Abdul Rahman Majumdar against which Crl. Revision No. 14(1) /89 was preferred before the learned Sessions Judge and the learned Sessions Judge by his order dtd. 8.9.89 set aside the order of the learned CJM dtd. 6.2.89 granting interim custody of the said elephant to the present petitioner. It is also submitted by Mr. Choudhury that Criminal Revisions were preferred before this Court vide Crl. Revision No. 587/89 and Crl. Revision No. 436/89 - one preferred by Abdul Rahman Majumdar and the other by the opposite party of the present case Aziruddin Laskar and this Court was pleased to uphold the interim custody of the elephant so given to this petitioner also observing that the dispute- was of civil nature and hence the ownership matter is to be decided by the Civil Court at appropriate time. It is also pointed out that in compliance with the order of this Court, Abdul Rahman Majumdar was directed as to hand over the elephant to the present petitioner but in the meanwhile the main case GR 663/89 got disposed of on 13.2.91, a copy of which is filed and marked as Annexure-I in which the accused was so discharged and the learned trial Court while discharging the accused held with regard to the possession of the elephant as to continue with the present petitioner as the question of ownership of the elephant was only possible to be decided by the Civil Court and therefore the said elephant as per the direction of the CJM dtd. 13.2.91 was allowed to remain with Sahiruddin Laskar the present petitioner and the parties were directed to seek relief in the competent Civil Court-competent to adjudicate and decide the ownership of the said elephant. The further case of the petitioner is that as per the above direction, the petitioner filed Title Suit No. 17/91 before the competent Civil Court for deciding the ownership of the elephant in question in his favour in connection with which Misc. Case 18/91 is also pending and in which the opposite party as defendant has also appeared. Lastly, it is pointed out that against the said order of the CJM dtd. 13.2.91 two revision petitions were filed one Iby this petitioner-being aggrieved by the said order by which the accused got discharged and also by the opposite party of the present revision petition claiming himself to be aggrieved by the other part of the order dtd. 113.2.91 by which the possession over the elephant was ordered to be continued in the hands of the present petitioner till the matter is finally decided by the competent Civil Court The opposite party put a case before the teamed Sessions Judge in Case No. 8(1) /91 which was a criminal appeal that after the conclusion of the trial when the accused was discharged, it was incumbent on the part of the learned CJM as to hold fresh enquiry with regard to the possession of the property U/S, 452 Cr. P.C. which was not done. The learned Sessions Judge vide the impugned order dtd. 18,12.91 allowed the prayer of the opposite party, set aside the order of the CJM dtd. 132.91 to the extent of the petitioner being allowed to continue the possession tell the matter with regard to the ownership is decided by the competent Court and remanded the matter back to the CJM as to hold enquiry U/ S. 452 Cr. P.C. with regard to the disposal of the property, i.e., the elephant. Being aggrieved by the said order of the Sessions Judge dtd. 18.12.91 this revision is preferred on the grounds mentioned in the petition which are all pressed into service with a prayer that in the instant case the learned CJM has assigned reasons for not holding fresh enquiry U/S. 452 Cr. P.C. though be was very much conscious of the provisions of the said section as reflected in the operative portion of the said order. On two grounds the learned CJM did not find it necessary as to hold such enquiry firstly because of the fact that the said issue with regard to the possession of the elephant was discussed at length by the learned Sessions Judge in the Criminal Revision No. 14(l)/89 disposed of on 8.9.89 and also in the background of the order so passed by the High Court in Cr. 1. Revn 587/89 dtd 15.3.90 giving the details with regard to the matter of possession and ownership finally to be decided by the competent Civil Court and interim possession till such disposal was to be continued with the present petitioner and in this connection the order of this Court passed is referred and particularly its paragraphs 1)3 to 12 are read. That being the position, hence on behalf of the petitioner it is argued that the learned Sessions Judge has rather erred white passing orders for fresh enquiry U/S. 452 Cr. P.C. in his order dtd. 18.12.91 which be thus set aside particularly when already Title Suit 17/91 is pending for disposal before the Asstl Dist. Judge, Cachar, Silchar for deciding the ownership of the elephant in question. In support of his this contention the learned counsel claimed himself to be fortified by two of the reported cases Cr. L J. 1979 page 428 (Govindachari Vs. The State and another and Cr. LJ. 1990 page 1347 (Meena Rani Vs. State of Hianachal Pradesh and another).