2014 ALL MR (Cri) 2993
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
T.V. NALAWADE, J.
Shri Vallabh Vaman Bhobe Vs. The State of Goa & Anr.
Criminal Writ Petition No.125 of 2013
21st January, 2014
Petitioner Counsel: Mr. VILAS P. THALI
Respondent Counsel: Mr. A.R. KANTAK
Criminal P.C. (1973), Ss.457, 451, 397 - Custody of shop - Revision against order of custody - Scope of revisional enquiry - Magistrate ordered interim custody of disputed shop in favour of petitioner - Respondent by filing revision, sought custody of laptop kept in said shop - Presence of laptop not mentioned either in panchanama prepared by police or in list prepared by wife of respondent himself - Order of revisional court directing to ascertain as to whether laptop is present in disputed premises and to conduct proper inventory - Without jurisdiction - Revisional court was expected only to ascertain as to whether order of Magistrate was proper and legal - Revisional order set aside.
State of Maharshtra Vs. Jagmohan Singh Kuldip Singh Anand and others, AIR 2004 SC 4412 [Para 10]
3. The present petition is filed under Articles 226 and 277 of the Constitution of India read with Section 482 of the Cr. P.C. to challenge the order made by the learned Addl. Sessions Judge, FTC, North Goa in Criminal Revision Application No.82/2012. The Learned Addl. Sessions Judge has made the order on the application filed at Exhibit 9 and has directed to ascertain as to whether the properties mentioned in the application by the petitioner from Revision Application no.82/2012 are present in the sealed premises and to conduct proper inventory accordingly.
4. The petitioner is the father of respondent no.2. There is dispute over a shop premises. It is the case of the petitioner that the property in dispute was taken on rent basis by his father and the petitioner became tenant of the premises after the death of his father which took place in the year 1974. It is the case of the petitioner that he is doing his business in the premises. There are allegations against respondent no.2 that on 4/1/2012, respondent no.2 first forcefully took the keys of the premises from him and petitioner was virtually confined in the suit premises. Allegations are made that the locks put by the petitioner were cut by respondent no.2 on 9/1/2012 and respondent no.2 put his own locks. After that, the petitioner reported the matter to the police and crime came to be registered for offence of trespass. The police conducted the panchanama of the premises, inventory of the articles was prepared and the premises was locked by the police. Thus, at present there is a lock put by the police on the premises.
5. It appears that both the sides filed applications before the J.M.F.C. for granting interim relief in respect of the possession of the premises. The petitioner filed application u/s 457 of Cr. P.C. for release and possession of the shop. The respondent filed application u/s 451 of Cr. P.C. The learned J.M.F.C passed order in favour of the petitioner on 3/7/2012 and directed to hand over possession to the present petitioner. This order came to be challenged in Revision Application no.82/2012. The Learned Sessions Judge has granted stay to the order made by the J.M.F.C.
6. The respondent no.2 has contended in the application filed at Exhibit 9 that his articles like laptop and two stands are in the said premises and that he wants custody of the laptop to file income tax returns on the basis of the entries made in the laptop.
7. The aforesaid articles are not mentioned in the panchanama prepared by the police and also in the list prepared by the wife of respondent no.2, which is made part of the panchanama prepared by the police. The Learned Additional Sessions Judge has observed that it needs to be ascertained as to whether said articles are in existence in the shop and for that direction is given by the learned Addl. Sessions Judge to open the premises and to ascertain as to whether the said article are there.
8. On facts, it can be said that description of the articles is given by the police in the spot panchanama. Respondent no.2 is claiming to be in some business and some articles of that business were found in the premises. The articles which were found on the ground floor are claimed to be his own articles by the petitioner. However, the police acted fairly and the list of property prepared by the wife of respondent no.2 is accepted and that is made part of the panchanama.
10. The Learned counsel for respondent no.2 has placed reliance on the case of "State of Maharshtra Vs. Jagmohan Singh Kuldip Singh Anand and others" reported in [AIR 2004 Supreme Court 4412]. The facts of this reported case show that the observation were made altogether is in different context. The decision of acquittal was challenged. In view of this circumstance, this Court holds that the proposition made in the reported judgment is of no use to respondent no.2.
11. Reliance was placed on some observation made by the Hon'ble Apex Court in Criminal Appeal No.814 of 2013 decided on 1/7/2013. In this case, the Apex Court has discussed provisions of Section 397 and Section 482. There cannot be any dispute that when there is statutory provision creating bar to exercise some power, the Court is not expected to use section 482 of Cr. P.C.
12. In the present case, the petitioner has challenged the order of the Learned Addl. Sessions Judge on the ground of jurisdiction. It can be said that the order made by the Learned Addl. Sessions Judge is beyond jurisdiction. In such a case, this Court can exercise its power of writ jurisdiction and set aside the order of the Subordinate Court.
13. This Court holds that in law, the Sessions Court has committed an error. On the basis of some material the Learned J.M.F.C has made some order and only in that context the Sessions Court is expected to ascertain as to whether the order is proper and legal.
14. The submissions made by the learned counsel for respondent no.2 that it needs to be ascertained as to who is entitled to custody of movable property in such a case can be accepted but that can be done at a later stage if there is dispute over it.
15. The main dispute is over the immovable property and the parties are interested in getting the possession of the immovable property by getting interim order. When any property is seized and sealed, by way of procedure, the officers preparing the panchanama are required to prepare list of all articles which are found in the immovable property. Similarly, when under the order of the Court the possession of such properties is given to any party, similar panchanama is expected to be prepared and the list of articles handed over and also found is expected to be prepared. Thus, the apprehension of respondent no.2 has no basis. It can be said that respondent no.2 is attempting to protract the decision of the matter pending in the Sessions Court. This Court holds that the order made by the Addl. Sessions Judge cannot sustain in law. The order under challenge is hereby set aside by allowing this proceeding.