TRIBANI M KUMAR Vs. ELLEN KAULA

JUDGEMENT

(1.) THE learned Sessions Judge of Simla has made this reference Under Section 438 of the Criminal Procedure Code and the facts, as disclosed, are rather so convincing that the reference has to be accepted. There is a premises known as "jutog View Cottage" at Summer Hill Simla, which, according to Mrs. Ellen Kaula was in her possession till July, 1970 when she left for Delhi. On 5-9-1970 when she returned from Delhi. She found that over her own lock, her close relation Mrs. Tribehi M. Kumar had put her own lock and thereby wanted to disturb her possession. Accordingly she made a report to the Police for the offence which might have been committed. Subsequently on 21st September. 1970 she made an application Under Section 523 Cr. PCode to the Chief Judicial Magistrate. Simla, and stated therein that she was residing in the Cottage and as the Police was likely to take long to complete investigation, the Police should deliver possession to her after breaking open the locks. The learned Magistrate asked for a report from the police. The report which arrived indicated, that there was a dispute of possession between the parties and the Police could not interfere. The learned Magistrate seemed to set dissatisfaction from this report and directed the Police to make further investigation and submit a fresh report. Again the Police submitted the very same report on 7th November. 1970. They stated specifically that no offence Under Section 448 Indian Penal Code was formulated and hence trie locks would not be broken open. The learned Magistrate then passed the impugned order dated 9th November. 1970 which was to the effect that the Police would go and break open the locks and deliver possession to Mrs. Ellen Kaula. Being aggrieved from this- order of the Magistrate, Mrs. Tribeni M. Kumar came in revision before the learned Sessions Judge.

(2.) IT is abundantly , clear that the order of the learned Magistrate could not be sustained under law. Section 523 can only, apply to a situation where the Police became seized of the property either as a result of search made Under Section 51, Cr. PCode or as a result of some investigation dealing with a property which is suspected to have been stolen, or found under circumstances which created suspicion of the commission of any offence. It is irnanifest. the Police was not seized of any property, nor could it, be stated that any incriminating property was to be found inside the premises. This was not even the case of Mrs. Ellen Kaula. I The learned Sessions "judge, therefore, rightly held that Section 523 Cr. P, Code was not applicable and the order of the learned Magistrate was entirely illegal. He has accordingly recommended Under Section 438 Cr. PCode for auashing the said order.

(3.) THE learned Counsel for Mrs. Ellen Kaula, however, contended in this Court that upon receiving the Police ' report dated 7th November. 1970 which was to the effect that Police could not comply with the directions of the learned Magistrate dated 9th November. 1970. the following order was passed by the learned Magistrate: