HIMTA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS miscellaneous petition is directed against the order dated May 28, 1988, passed by the Additional Sessions Judge No. 2, Hanumangarh, by which the learned Additional Sessions Judge allowed the revision petition filed by Mani Ram and order for the custody of the bus to be given to Mani Ram.

(2.) A bus No. RSC 565 was seized by Police Station, Pilibanga, in a Criminal Case No. 97 of 1986 The State of Rajasthan v. Kalu Khan pending in the Court of the Munsif and Judicial Magistrate, First Class, Suratgarh. After the seizure of the bus, the registered owner of the bus Shri Himta Ram made an application for custody of the bus and the learned Magistrate, by his order dated February 3, 1986, ordered for the custody of the bus in favour of Himta Ram on 'SUPURDGINAMA' with surety. Himta Ram filed surety bond and the custody of the bus was handed over to him. After the delivery of the bus to Himta Ram, Badri Singh, who stood surety, moved an application on June 29, 1987, in the Court of the Munsif and Judicial Magistrate, Suratgarh, mentioning therein that Shri Himtta Ram has sold the bus to Shri Mani Ram and the bus has been seized by the Roadways Magistrate, Bikaner, and is lying in Police Station, Goluwala. He, therefore, prayed that he does not want to stand surety and wants to withdraw the surety. On this application, the learned Magistrate directed the Station House Officer, Police Station, Pilibanga, not to hand over the bus to any other person till the Court so orders. The Station House Officer, Pilibanga, in pursuance to this order of the Judicial Magistrate, Suratgarh, reported to the Court that as the bus was seized by the Roadways Magistrate, Bikaner and the order has been received from the Roadways Magistrate, Bikaner, to give the custody of the bus to Mani Ram but the bus is still lying at the Police Station, Goluwala and has not been released. Thereafter Himta Ram and Mani Ram, both, moved applications for the custody of the bus to them. The learned Magistrate, by his order dated July 3, 1987, ordered for the custody of the bus to be given to Himta Ram. The learned Magistrate, while ordering for the custody of the bus in favour of Himta Ram, it appears that, he did not take into consideration the fact that the bus was ordered to be delivered to Mani Ram by the learned Roadwyas Magistrate. Dissatisfied with the order dated July 3, 987, Mani Ram preferred a revision petition before the learned Additional Sessions Judge No. 2, Hanumangarh, who, by his order dated May 28, 1988, allowed the revision petition filed by Mani Ram, set aside the order passed by the learned Munsif and Judicial Magistrate, Suratgarh, and ordered for the delivery of the bus to Mani Ram on certain conditions on furnising sureties in the sum of Rs. 1,30,000/ -. It is against this order that the present petition under Section 482 Cr.P.C. has been filed by the petitioner Himta Ram.

(3.) IT is contended by the learned Counsel for the petitioner that the order passed by the learned Magistrate, ordering for the delivery of the bus to Himta Ram, was an interlocutory order and no revision petition against that interlocutory order was maintainable. As the revision petition itself is not maintainable and, therefore the order passed by the learned Additional Sessions Judge No. 2, Hanumangarh, is wholly without Jurisdiction. It has further been submitted by the learned Counsel for the petitioner that earlier the bus was ordered to be given to Himta Ram (petitioner) by the learned Magistrate and if there was any breach of the condition of the SUPURDGINAMA' then the action could have been taken for that and on the application of the Surety, withdrawing his surety, the petitioner could have been asked only to furnish fresh surety, but the delivery of the bus cannot be given to any other person. Lastly it is submitted that the petitioner is the registered owner of the bus in question and, therefore, he is the person best entitled for the delivery of the bus. The learned Public Prosecutor and the learned Counsel for the non petitioner No. 2, on the other hand, have supported the order passed by the learned lower Court. It was argued by the learned Counsel for the non petitioner No. 2 that in another Criminal Proceeding, where the bus was seized by the Roadways Magistrate and an order was passed for the custody of this bus in favour of Mani Ram and against the order, a revision, petition was filed by Himta Ram in the court of the Additional Sessions Judge, Bikaner, where the revision petition was dismissed and against the order of the learned Additional Sessions Judge, Bikaner, dismissing the revision petition filed by Himta Ram, Himta Ram preferred a Misc. petition before this Court, which was, also, dismissed by this Court on October 19, 1987, and the bus was ordered to be delivered to Mani Ram. In these circumstances, when the bus in question has already been ordered to be delivered to Mani Ram by this Court, in this proceeding, the bus cannot be ordered to be delivered to Himta Ram (Petitioner) and the principle of 'res judicata' is applicable in criminal cases even. He has, further, submitted that Mani Ram filed a civil suit in the Court of the Additional District Judge No. 2, Hanumangarh, with respect to the same bus and in that civil suit, the counsel for Himta Ram, on April 24, 1989, gave an undertaking to maintain the status quo so far as the possession of the bus is concerned. The possession of the bus, on that day, was with the non petitioner No. 2 Mani Ram and as the counsel for the petitioner gave an undertaking before the civil Court to maintain the status quo, as such the possession of the bus cannot be given to the petitioner Himta Ram.