Decided on May 03,1983



Amitabha Dutt, J. - (1.) This Revisional application is directed against the Oilier dated 12-6-1982 passed by the learned Sessions Judge Hooghly in Criminal Motion No. 47 of 1982 setting aside the Order No. 10 dated 16.4.1982 passed by the Sub-Divisional Executive Magistrate, Serampore in Misc. Case No.4 of 1982.
(2.) On 27.2.1982 the petitioner as agent of a registered firm named M/s Shiblal Narayan Das filed a complaint before the learned Sub Divisional Judicial Magistrate, Serampore alleging that the opposite parties as partners of M/s Pratima Textiles had committed criminal breach of trust in respect of 40 sized cotton beams and yarn entrusted to them for being woven into finished products such as Dhuties, Sharis etc, at pick rate system; The learned Magistrate after examining the complainant and another witness under Section 200 of the Code of Criminal Procedure directed an investigation by the Officer-in-Charge of Serampore PS under Section 202 of the Code. The complainants prayer for issue of search warrant under Section 94 of the Code for recovery of the goods in question was rejected by the learned Magistrate as according to him no Prima facie case had been made out at the stage.
(3.) Having failed there the petitioner on 23.2.1982 applied before the learned Sub Divisional Executive Magistrate Serampore for issue of a search warrant under Sections 93/94 of the Code alleging that opposite parties were trying to misappropriate and had misappropriated some yarn and clothes which were lying at the Premises of M/s Pratima Textiles at 3 Sital Sarkar Lane, Mahesh, PS Serampore. The learned Sub-Divisional Executive Magistrate directed the Inspector-in- Charge of Serampore PS to inquire and report. Thereafter on 16-4-82 having considered the police report and heard the learned advocates of the parties he was prima facie satisfied that the petitioner had made payments to Bauria Cotton Milts for the raw materials in question said to have been entrusted to the opposite parties while the opposite parties could not produce any document in support of their contention that they had made payments for the raw materials on behalf of the petitioner. So the learned Sub Divisional Executive Magistrate directed the police to recover the goods and keep them in the custody of petitioner who was to execute a bond of double the value of the goods that might be recovered. The opposite parties moved the learned Sessions Judge, Hooghly against the said order dated 16-4-82. The learned Sessions Judge has set aside that order on the ground that when the learned Sub-Divisional Judicial Magistrate, Serampore had earlier rejected the petitionerTs prayer for issue of search warrant under Section 94 of the Code it was not proper for the Sub Divisional Executive Magistrate, Serampore to nullify the order of the competent court by issuing search warrant. He has observed that although the Sub-Divisional Executive Magistrate had concurrent jurisdiction to issue search warrant under Section 94 of the Code the party who had chosen a forum and had failed to get relief from that forum should not be allowed to seek relief from another forum with concurrent jurisdiction without moving the higher, court against the order refusing to grant the relief to him. Being aggrieved by the order of the learned Sessions Judge the petitioner has moved this Court in revision.;

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