Subhajit Sarkar vs The General Manager, Eastern Railway

Ashim Kumar Roy, J.—The petitioner is the registered owner of a Tata Light Goods Vehicle, which was seized in connection with a case relating to the offence punishable u/s 3(a) of the Railway Properties (Unlawful Possession) Act, 1966 on the allegation, when it was intercepted by the police, the said vehicle was found loaded with stolen railway properties. I find from the materials on record that the learned Chief Judicial Magistrate, Hooghly by his order passed on 23rd August, 2012, ordered for release of the vehicle in question to the petitioner on furnishing a zimma bond of Rs. 10 lakhs and on other conditions. I further find that subsequently the case was transferred for disposal to the court of the learned Judicial Magistrate, 5th Court, Hooghly Sadar. Since in the meantime the Investigating Officer of the case on one pretext or other did not release the vehicle in spite of the court''s order. The matter was brought to the notice of the learned Judicial Magistrate, 5th Court, Hooghly Sadar and the learned Magistrate by the impugned order held the vehicle in question cannot be returned to the petitioner as the same is the alamat of the case and consequently the petitioner''s prayer was turned down.

Heard the learned Counsel appearing on behalf of the parties. Perused the impugned order and the other materials on record.

This is a case, where after an order for release of the vehicle has been passed by the learned Chief Judicial Magistrate, Hooghly, the transferee court, the Judicial Magistrate, 5th Court, Hooghly Sadar has reversed the same. There is no doubt the order impugned is completely illegal and without jurisdiction. A subordinate criminal court has no jurisdiction to review its order passed either by itself or by his predecessors in office. Here in this case, the Judicial Magistrate has changed the order passed by the Chief Judicial Magistrate to whom he is a subordinate. Any order passed by a subordinate court can be interfered with or altered, if at all, only by a higher court. Furthermore, the order impugned is totally uncalled for because if the vehicle is remained unattended and without any maintenance under the open sky in the thana compound, undoubtedly in passage of time, the same will be reduced to mere scrap. The decision of court below is against the law laid down by the Hon''ble Apex Court in the case of Sundarbhai Ambalal Desai versus State of Gujarat reported in 2003 SCC (Cri.) 1440.

Having heard the learned counsels for the parties, perusing the impugned order and considering the background facts as aforesaid and the law laid down by the Hon''ble Apex Court, in my opinion, the order impugned cannot be sustained and is accordingly set aside.

It is directed that the vehicle in question be returned to the petitioner at once by the court below on being satisfied as to his title that he is the registered owner thereof, against execution of a bond of Rs. 5 lakhs and on further condition that pending hearing of the trial, he shall not change the nature and character of the said vehicle and shall not create any third party interest in respect thereof. The final custody of the vehicle shall abide by the result of the trial and the other conditions stipulated by the learned Chief Judicial Magistrate, Hooghly while releasing the vehicle in question, shall remain unaltered.

Needless to mention, the vehicle in question be returned to the petitioner only after the learned Magistrate being fully satisfied that he is the registered owner thereof.

Office is directed to communicate this order to the court below at once. Urgent Photostat certified copy of this order, if applied for, be given to the parties at an early date.