Yadav Ram vs Ashok Dubey and Another

M. Wahajuddin, J.—The applicant has been summoned by the court of Metropolitan Magistrate, Raipurwa, Kanpur, by order dated 23-1-1932. The summons being not served, an order dated 6-8-1982 was passed summoning him for 23-9-1982. On 25-8-1982 an application was moved for search and seizure of the factory. Of this the applicant had no notice. The factory was given in the Supurdigi of one Mohammad Fahim. The Chief Metropolitan Magistrate later transferred the case to the Metropolitan Magistrate Siswamau. An objection was filed by the applicant that the factory be released and the earlier order be set aside. That application has been rejected by the Metropolitan Magistrate, Siswamau, vide his order dated 6-11-1982 (Annexure ''7''), observing that until and unless all the documentary and oral evidence has been adduced by both the parties, it is not possible to give any verdict on the conflicting claims, and, consequently, the decision on releasing the attached property can be arrived only after evidence and the Magistrate fixed 10-12-1982 for evidence u/s 244, Code of Criminal Procedure. As he has fixed for evidence u/s 244 Code of Criminal Procedure, It implies that he has deferred the decision until the evidence in the complaint case itself.

The applicant has prayed that the complaint (Annexure "1" to the affidavit) and all the proceedings in consequence of the complaint be quashed. Affidavit and supplementary-affidavit have been filed in support of the claim. The other side has filed counter-affidavit and supplementary-counter-affidavit. Both sides have also made annexures with the affidavits and counter-affidavits to support their respective claims. Annexure ''1'' is the complaint itself and Annexure ''4'' is the order of the Magistrate directing issue of search warrants and also directing attachment of the parts, accessories, and plants of the factory with a further direction that they may be given in the Supurdigi of a reliable person.

The first contention raised is that the matter related to the territorial jurisdiction of Metropolitan Magistrate, Siswamau, and the Metropolitan Magistrate, Raipurwa took cognizance of the complaint and the order summoning the applicant as well as the order for the search and seizure of the factory and its ultimate attachment are all bad. The second contention raised is that the complaint is simply by way of harassment of the applicant and actually the dispute is purely a civil dispute and criminal action is an abuse of the process of law. The third contention raised is that the matter did not fall u/s 93(1)(b) of the Code of Criminal Procedure, because the person in whose possession the thing lay was known and not unknown, and consequently, a notice should have been issued first u/s 91(1) Code of Criminal Procedure directing any search or seizure. The last point urged is that in any case when the order of seizure and attachment was made ex-parte, the applicant''s objection filed later should have been heard on merits rather than deferring the matter to record all the evidence in the trial itself.

I may first consider whether the complaint as such does not disclose any offence justifying the criminal action and it should be quashed as such. The law is well settled that this Court exercising its inherent powers u/s 482, Code of Criminal Procedure, will not quash the proceedings, if a prima facie case is disclosed by the complaint and other materials before the Magistrate, who passed the summoning order. The principles laid in the leading cases of R.P. Kapoor and Madhu Limaye have been reiterated in the latest Supreme Court pronouncement of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, . The complaint is Annexure "1". It has been stated in paragraph 4 of the complaint that the applicant was entrusted with the machinery and plants of the factory and It was further stated in paragraph 7 of the complaint that the applicant has misused the entrustment and has sold away and transferred a number of machineries already. These recitals would prima facie disclose a case of entrustment and misappropriation. The opposite party complainant here relied upon their alleged hire-purchase agreements, Annexure "2" to "4" of its supplementary-counter-affidavit. He also relied upon a balance sheet of 1978-79 from 3-11-1978 to 20-10-1979 of the applicant in which certain amounts were shown concerning the credit of Dr. Sheo Swamp, father of the complainant. The contention of the applicant is that they are all forged documents. This Court cannot enter into question of facts and further cannot enter into any enquiry on such points So I need not either base any conclusion upon these documents or upon the documents filed on behalf of the applicants in support of his stand that the machinery is his own and that actually the opposite party has no lessee right or ownership in the land in question, which belongs to someone else, it will be sufficient to observe that as the complaint prima facie discloses a case of embezzlement, which is to be examined by the trial court itself and it is the trial court which has to enter into the question of facts, the complaint cannot be quashed in these proceedings.

I may next consider the submission that the summoning order and order of search and seizure is bad for want of territorial jurisdiction of the Metropolitan Magistrate, Raipurwa, who passed the two orders. Curiously enough the complaint (Annexure ''1'') was addressed to and filed in the Court of such Metropolitan Magistrate It has been alleged in paragraph 12 of the affidavit in support of the application that the factory is situated in Slswamau and it was the Metropolitan Magistrate, Siswamau, who had jurisdiction over the case. It was further alleged in paragraph 13 of the affidavit that the complaint was filed in a wrong court and the Metropolitan Magistrate, Raipurwa, had no jurisdiction in the matter and the orders passed by him are without jurisdiction. It has also been alleged in paragraph 14 of the affidavit that ultimately the Chief Metropolitan Magistrate was approached by the applicant, who then transferred the case from the Metropolitan Magistrate, Raipurwa, to Metropolitan Magistrate, Siswamau. In reply to paragraph 12 of the affidavit, it was stated that the contents are not admitted. There was thereafter not a word as to where the factory is located and whether it was in Raipurwa or in Slswamau, although there was a clear assertion by the applicant in his affidavit that it was located in Siswamau. In the circumstances, in view of such clear and categorical assertion on behalf of the applicant it can safely be held that the property is located in Siswamau, within the territorial jurisdiction of the Metropolitan Magistrate, Siswamau, and not within the territorial jurisdiction of the Metropolitan Magistrate, Raipurwa.

There is a direct authority of the Supreme Court that if there is simply a lack of territorial jurisdiction, it is an irregularity which will be cured, namely, the case of Smt. Raj Kumari Vijh Vs. Dev Raj Vijh, . The case related to an application u/s 488, Code of Criminal Procedure and the sole controversy was about the territorial jurisdiction. It was laid down that there are two types of jurisdiction of a criminal court: (i) the jurisdiction with respect to the power of the court to try particular kind of offences, (ii) territorial jurisdiction, and while former goes to the root of the matter and any transgression of which makes the entire trial void, the latter is not of a pre-emptory character and curable u/s 531, Code of Criminal Procedure (old), i.e., Section 460 Code of Criminal Procedure (present). Any other pronouncement of the Supreme Court to the contrary is not cited. Learned Counsel for the Respondent relied upon the case of The State Vs. Ramniranjan and Another, . That ruling deals with Sections 346(2) and 350 of the Code of Criminal Procedure when a Magistrate receives a case after transfer he has to try it afresh. Any other rulings of any High Court would also not be helpful, when there is a direct pronouncement of the Supreme Court on the matters concerning territorial jurisdiction holding that if the Magistrate is otherwise empowered to try the offence, the lack of territorial jurisdiction would get cured under the provisions of Section 460 Code of Criminal Procedure (new). It may at this stage be also mentioned that certain authorities were cited in support of the contention of the applicant that the intention of cheating should exist from the very inception. It is needless to refer to those rulings when the complaint allegations disclose a case of misappropriation after entrustment of property and that It is always a question of fact to be tried by the Magistrate.

It would, however, appear that in the present case the order for search and seizure was passed behind the back of the applicant and without hearing him. The learned Counsel for the opposite party urged that actually the order for attachment was covered u/s 93(1)(b) of the Code of Criminal Procedure. I may reproduce that Sub-section, which reads as follows:

93 When Search-warrant may be issued- (1)(a) Where any court has reason to believe that a person to whom a summons or order u/s 91 or a requisition under Sub-section (1) of Section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or (b) where such document or thing j8 not known to the Court to be in the possession of any person, or

It is noteworthy that Section 93(1)(b), Code of Criminal Procedure deals with the cases where the documents or things are not known to the Court to be in the possession of any person. It is not so in the present case. The location of the factory was known, where the machinery and its accessories lay and the person was also known who was in its possession. The matter has been considered in the case of M.P. Sharma and Others Vs. Satish Chandra, District Magistrate, Delhi and Others, in which sections in the old Code of Criminal Procedure corresponding to the present Sections 91 and 93 Code of Criminal Procedure i.e., Sections 94 and 96 of the old Code of Criminal Procedure have been considered. It has been laid down that the requirement of previous notice or summons and the non-compliance with it or the likelihood of such non-compliance as prescribed for the first alternative in Section 96(1), which corresponds to present Section 93(1)(a) and not for the second or the third. It has been further laid down that a general search order can be issued for a thing not known to be in possession of any particular person. That being the position, a general search warrant u/s 93(1)(b) could not be issued when the person in whose possession a thing lay was known and the place where the things lay were also known. Whether issue of a summon u/s 91(1) would offend against Article 20(3) of the Constitution is a question which I am not called upon to adjudicate, because neither the accused person claims any privilege, nor the matter has been argued before me with that angle. I should, therefore, confine myself only to the question whether search and seizure warrant could be issued u/s 93(1)(b) of the Code of Criminal Procedure when the person is known and the place where the things lay is also known and so far as that aspect is concerned, a general search and seizure warrant could not have been issued.

It was next urged that the Magistrate in his order stated that the accused is avoiding appearance in the court deliberately. The Magistrate has observed in his order (Annexure ''4'') that he finds force in the contention of the applicant that the accused is avoiding appearance in the court deliberately. No materials could be pointed out to this Court which may indicate that it was really so. The summons are not said to have been taken Dasti. There is no police report suggesting that the applicant was avoiding service of summons. When the Magistrate issued fresh summons for the next date, he does not appear to have observed that the summons were being avoided. Apart from that, the summons were for appearance and not u/s 91(1), Code of Criminal Procedure and the Magistrate had already-on 6-8-1982 6xed 3-11-82 for appearance of the accused and without waiting for that and without any notice to the accused applicant in between he passed the impugned order of general search and seizure ex parte. That order is bad as such However, in view of the pronouncement of Brijandra Nath v. Pharma Pvt. Ltd. 1982 AWC 110 : 1982 ACR 62 based on Supreme Court view, even where the search is bad, once the seizure has already been made it will not affect the validity of the seizure or proceedings. However, by this I do not mean that the party, behind whose back such an order of seizure has been made, should not be heard and the matter should remain postponed and deferred till the stage of trial, because that would result in a great injustice for non-observance of the correct procedure under which the party should have been given a notice.

I find that when the affected party, namely, the applicant, later appeared before the court where the case stood transferred and raised objections against attachment, the court to which the proceeding was transferred did not dispose of that objection on merits, while it should have necessarily done so when the earlier order of seizure was ex parte and the applicant has no opportunity to place, his case against the Magistrate. The application that was preferred is Annexure 5 seeking release of the property in favour of the applicant. It was supported by an affidavit which was a detailed one. The Magistrate disposed of the matter vide order dated 6-11-82 (Annexure ''7''). The concluding observations of the Magistrate are that until and unless all the documentary and oral evidence has been adduced by both the parties, it is not possible to give any verdict on the conflicting claims, and the decision on releasing the attached property can be arrived only after the evidence It is noteworthy that he did not call for evidence concerning this objection seeking release. On the contrary, he called for evidence regarding trial itself u/s 244 Code of Criminal Procedure which would in substance mean that the matter has been deferred sine die pending trial of the case. That I feel is unjust and unequitable and against all canons of justice. The order dated 6-11-1982 of the Magistrate cannot be sustained and it must be set aside. I would, therefore, direct that the Magistrate should hear the parties on merits whether the seizure should continue or the property should be released as prayed by the applicant. If for disposing of that matter evidence is required, he may record such evidence. If the normal proof of the documents is not dispensed with, he may permit evidence to prove the documents relied upon by both the sides. The factory is a running concern. The Magistrate should seriously consider whether it would be fair and equitable to stop running of the factory as such. Criminal trials take very long time and any closure of the factory may lead to great loss to one party or another. The applicant was running the factory. The complainant''s grievance is that the accused applicant is removing and changing the parts and machineries of the factory. The Magistrate may also consider, will it not be proper to have a complete and exhaustive inventory of the entire machinery and its accessories with all possible details and particulars to guard against any replacement, removal etc. He may also consider whether any formula can be evolved to run the factory at the same time ensuring that no parts, machinery and accessories are removed or changed; and if so, on what terms and conditions. Whatever observations I have made shall in no way bind the Magistrate who has to exercise his independent mind and his discretion to come to a right and just decision. But at the same time the matters cannot be left to arbitrariness and sweet will and I, therefore, direct that the objections of the applicant against the seizure and attachment should be heard and disposed of within a month and it will also be open to the Magistrate to make any interim arrangements if he considers the same desirable.

Before parting with this case I may also observe that the then Metropolitan Magistrate, Raipurwa, Kanpur, should be careful and vigilant about his territorial jurisdiction as not to entertain complaints in this manner of any area not assigned to him and not in his territorial jurisdiction. This is for his future guidance.

In the result, the application is only partly allowed to the extent that the order dated 6-11-1982 of the Metropolitan Magistrate, Siswamau, is set aside and the Magistrate is directed to dispose of the objections of the applicant against attachment and his prayer for release of the property within a month and also afford opportunity to the parties for evidence regarding the matter, as directed in the body of the judgment. Rest of the prayers in the application are rejected. The parties are directed to appear in the court of Metropolitan Magistrate, Siswamau, Kanpur, on 15th September, 1983, so that the Magistrate may give an early date and dispose of the matter.