Surya Kumar Misra vs Reoti Raman Misra and Others

Palok Basu, J.—It appears that dispute has arisen concerning the custody of the truck bearing registration No. C.P.A. 3079 and during investigation one Kuldeep Singh was admittedly its erstwhile owner. The dispute presently centres round the point as to whether the said erstwhile owner had transferred the vehicle to the applicant Surya Kumar Misra or the opposite party Reoti Raman Misra. These two parties appear to be related to each other and there is a dispute concerning ownership right of the truck also. It appears that the truck was seized by the police in pursuance of a report which has been lodged by Reoti Raman Misra and the seizure relegated the parties to the court of Magistrate for its real custody. In the circumstances an application u/s 457 Code of Criminal Procedure was moved by the applicant as well as the opposite party No. 1.

During the proceedings u/s 457 Code of Criminal Procedure an application was moved by the applicant S.K. Misra with two prayers. Firstly, the erstwhile owner of the truck Kuldeep Singh should be examined. Secondly, the applicant should be permitted to cross-examine Reoti Raman Misra. By the impugned order dated 29-8-1991 the Magistrate has rejected both the prayers of the applicant. Hence this revision.

Sri Wajahat Hussain Khan learned Counsel for the applicant has relied upon the provisions contained in Section 457 Code of Criminal Procedure and Section 296 Code of Criminal Procedure and has said that since enquiry is going on the Magistrate would be duty bound to follow the law enunciated in those two Sections and if interest of justice required he ought to have allowed the two prayers of the applicant contained in the application.

Sri R.C. Srivastava, learned Counsel for the opposite party No. 2, Reoti Raman Misra has, however, raised a preliminary objection to the effect that revision is not maintainable as the order was interlocutory order. The second argument of Sri Srivastava was that on merits two prayers could not have been allowed and, therefore, the impugned order does not call for any interference.

Km. Nihad Moonis learned A.G.A. for the state has, however, said that the impugned order does not suffer from any infirmity and it should be upheld in toto.

A close look at the controversy as noted above makes it desirable that the Magistrate should examine the evidence of Kuldeep Singh, the erstwhile owner in case he is produced by the applicant Surya Kumar Misra or his affidavit is filed before him. This is all the more necessary for the reason that both the applicant and the opposite party No. 2 are closely related and some useful Information may stand revealed through his testimony. The Magistrate is however right in his assessment that while he is not going to determine the question of ownership finally as that is a subject matter for civil courts, yet he appears to have faltered in ignoring the prayer of the applicant in so far as recording of evidence of Kuldeep Singh or filing his affidavit is concerned. Therefore, this part of the order of the Magistrate requires interference.

So far as second part of the order is concerned, it may be stated here that no case has been made out for cross-examining the opposite party Reoti Raman Misra for the simple reason that the procedure of enquiring entilement of possession in Section 457 Code of Criminal Procedure appears to be summary in nature and niceties of a trial can and should not be invoked at that stage. A distinction which rightly exists between such summary enquiry and regular trial has been rightly drawn by the Magistrate in his empugned order only in so far as the prayer for cross-examining Reoti Raman Misra is concerned. That part of the order has, therefore, to be upheld.

Now coming to the preliminary objection raised by Sri R.C. Srivastava, suffice it to say that the impropriety of an order which goes to the root of the matter even if not open to revision u/s 401 Code of Criminal Procedure can certainly be examined u/s 482 Code of Criminal Procedure with a view to do justice and give effect to the provisions of the code as noted in Section 457 Code of Criminal Procedure. This proposition of law has been clearly laid down in the case of Raj Kapoor and Others Vs. State and Others, .

In view of the aforesaid discussion this revision is partly allowed. The order dated 29-8-1991 passed by Additional Chief Judicial Magistrate, Allahabad in case No. 23-XII-of 1991 relating to disposal of the truck bearing registration No. C.P.A. 3079, u/s 457 Code of Criminal Procedure is set aside only to the extent to which he has rejected the prayer of the applicant for filing affidavit or examining Kuldeep Singh, the erstwhile owner of the truck. Sri Wajahat Hussain Khan, learned Counsel for the applicant has made a statement that one month and no more may be allowed to him to either file an affidavit or examination of Kuldeep Singh before the Magistrate concerned if within a period of one month from today the said affidavit is not filed or Kuldeep Singh is not examined, the Magistrate shall be at liberty to proceed with the case on the materials existing on the record. His order in rejecting the prayer for cross-examination of Reoti Raman Misra is up-held.

The revision is thus finally decided in the aforesaid terms.

The Magistrate shall decide the matter expeditiously.