HIMTA RAM Vs. MANI RAM

JUDGEMENT

(1.) THIS miscellaneous petition under Section 482 Cr.P.C. has been filed by the petitioner for restoration of the miscellaneous petition No. 267/88 which was dismissed in default on January 11, 1988.

(2.) A bus No. RSC 565 was seized by the police on June 26, 1987 in a Criminal Case No. 97 of 1986 The State of Rajasthan v. Kalu Khan and Ors. under Section 129(a) of the Motor Vehicles Act. After the seizure of the bus, the petitioner Himta Ram moved an application under Section 451 Cr.P.C. before the Roadways Magistrate, Bikaner, for delivery of the bus. Mani Ram non petitioner, No. 2, also, filed an application under Section 451 Cr.P.C. for delivery of the bus to him. The learned Roadways Magistrate, by his order dated June 30, 1987 decided both the applications filed by the petitioner as well as by Mani Ram for the custody of the bus. The application filed by the petitioner was rejected while the application filed by Mani Ram was allowed and the Court directed that the bus in question may be given on 'SUPURDGINAMA' to Mani Ram. Dissatisfied with the order dated June, 30, 1987, passed by the learned Roadways Magistrate, the petitioner preferred a revision petition before the learned Sessions Judge, Bikaner, which was decided by the learned Additional Sessions Judge, Bikaner. The learned Additional Sessions Judge, Bikaner by his order dated August 4, 1987 rejected the revision petition filed by the petitioner. Aggrieved with the order dated August 4, 1987, passed by the learned Additional Sessions Judge, Bikaner, rejecting the revision petition filed by the petitioner, the petitioner preferred a miscellaneous petition before this Court, which was registered as : S.B. Criminal Miscellaneous Petition No. 194 of 1987. That application came up for consideration before NC Sharma, J., who dismissed the miscellaneous petition filed by the petitioner by his order dated October 19, 1987. After dismissal of the miscellaneous petition No. 194 of 1987, the petitioner filed an application under Section 482 Cr.P.C. for recalling of the order dated October 19, 1987. That miscellaneous petition was registered as S.B. Criminal Miscellaneous Petition No. 297 of 1987 Himta Ram v. Mani Ram and Ors. The miscellaneous petition came up for consideration before Hon'ble N.C. Sharma, J. on January 11, 1988 and as nobody was present when the case was called, therefore the petition was dismissed in default. It is against this order that the present petition under Section 482 Cr.P.C. has been filed.

(3.) IT has been mentioned in this application that the counsel for the petitioner and the petitioner, both, were present in the Court on January 11, 1988 when the case was listed. Sometime before when the case was called, the counsel for the petitioner had gone to take water and when he returned, by that time the case was already dismissed in default. The petitioner himself was present in the Court, but he could not know when the case was called. Before considering this application. I think it proper to consider the earlier application for recalling the order on merits, If that application can be allowed, only in that circumstance, it is useful to allow this application and, therefore, I have heard the learned Counsel for the petitioner, the learned Counsel for the non petitioners and the learned Public Prosecutor on merit on that application.