Mahesh Chandra Solanki vs State of U.P.and others

Mrs. Poonam Srivastav, J.

Heard Sri R.L. Sharma, learned counsel for the petitioner and learned A.G.A. for the State.

This writ petition has been filed challenging the order dated 24.1.2009 passed by respondent no.2 as well as orders passed by respondent nos. 4, 3 and 5, Annexure Nos. 22, 17A, 17 and 20 to the writ petition. The prayer is for issuance of mandamus commanding the respondents not to interfere with the right and title of ownership of the vehicle namely Truck No. HR38D8652 pursuant to the impugned orders. At the very outset, second prayer in the writ petition is not maintainable and if any question of right, title or ownership of the truck in question is to be got decided, there are several other proceedings which the petitioner should resort to.

The facts giving rise to the dispute are that petitioner, Mahesh Chandra Solanki, is aggrieved by order dated 20.1.2009 passed by the Additional Chief Judicial Magistrate, Aligarh, which has been confirmed in revision on 24.1.2009. The truck in question has been released in favour of the contesting respondent. The first information report was lodged at the instance of the petitioner against the contesting respondent, in which final report was submitted. The Magistrate directed for further investigation and finally charge sheet has been submitted and proceedings are continuing pursuant to the charge sheet. As submitted by the counsel for the petitioner, an application for release of the truck was moved by the petitioner before the Chief Judicial Magistrate as well as another application by the contesting respondent for release of the truck in his favour. By means of the order dated 15.4.2008 passed by the Chief Judicial Magistrate, Aligarh, the truck was released in favour of petitioner, Mahesh Chandra Solanki. This order was challenged in revision. The revsional court allowed the revision on 10.11.2008 and remanded the matter to the Chief Judicial Magistrate for a fresh decision. The Chief Judicial Magistrate was of the view that since he has already expressed his opinion recording reasons that since the matter has been remanded, it will not be appropriate for him to decide the matter as he has already given his opinion. The Chief Judicial Magistrate transferred the matter to the Additional Chief Judicial Magistrate who heard both the sides and rejected the application of the petitioner on 20.1.2009. This order was challenged in criminal revision which was dismissed at the stage of admission itself by means of the impugned order 24.1.2009.

Learned counsel for the revisionist has tried to lay emphasis that while rejecting the application, the courts below lost sight of the fact that the charge sheet has been filed, the Magistrate has not accepted the final report and further investigation was directed, since these questions have not been taken into consideration, the truck could not be released in favour of the contesting respondent. Moreover, the order of release being an interlocutory order, no revision was maintainable against the order releasing the truck. The learned counsel has emphasized and argued that the remand order passed previously was illegal. It is sufficient to say that the remand order was acceded and never challenged before the higher court, the petitioner allowed the question to be decided by the Additional Chief Judicial Magistrate. When the Chief Judicial Magistrate transferred the case to the Additional Chief Judicial Magistrate, no objection was raised even on that point. Now after the Additional Chief Judicial Magistrate released the truck in favour of the contesting respondent, all these questions have been raised in this writ petition regarding remand order and the question that the Chief Judicial Magistrate has no right to transfer the case to the Additional Chief Judicial Magistrate. Sri Sharma, appearing for the petitioner submits that it amounts to flouting the order of the revisional court and is an act of contempt.

Learned counsel for the revisionist has placed reliance on a decision of the Apex Court in the case of Manager ICICI Bank Ltd. Vs. Prakash Kaur and others, AIR 2007 Supreme Court, page 1340.

I have gone through the said decision which relates to the question where recovery of certain vehicle or article is held to be illegal and recovery was made in the said case by hiring goondas and miscreants. This is not a question which is being decided in the instant writ petition; so far the allegation that the truck was being taken away by hiring goondas was made in the first information report regarding which charge sheet was filed and the trial is proceeding, is altogether different matter and does not relate to the limited dispute that is involved in the instant writ petition.

In the circumstances, I am of the considered view that the decision of the Apex Court has no relevance to the question involved in the instant writ petition. Only question that has to be decided in the writ petition, whether to release the vehicle in favour of the original owner or the petitioner who claims to be a higher purchaser is correct or not ? This question has also to be decided in a separate proceeding but so far the question for release of the truck during continuation of the criminal proceedings is concerned, I do not find any illegality in the impugned order as well as revisional order. Therefore, I am not inclined to interfere in the instant writ petition. The writ petition lacks merit and is, accordingly, dismissed.