V.P.Mathur - (1.) THIS revision is directed against the judgment and order passed by Sri B. B. Agarwal, the then Had Additional Sessions Judge of Varanasi on 18-5-82. The learned judge was disposing of Criminal Revision no. 1C3 of 1979 which was directed against the order passed on 7-4-1979 by Mr. D. P. Mishra, Sub-Divisional Magistrate in Criminal Case no. 16/33 of 1978 under section 145 CrPC.
(2.) BRIEFLY stated, the facts of the matter are that standing crops assessed at a value of Rs. 3200.00 were attached in proceedings under section 145 CrPC and handed over to the custody of Sheo Nath. Later on the proceedings under section 145 CrPC were dropped with the order that the parties shall be entitled to half of the price of the standing crop each. The "supurdar" was called upon to submit an account. His contention was that he was liable only for a sum of Rs. 24/- after adjusting the expenses that he had incurred. The Magistrate rejected the supurdar's account and directed him to deposit a sum of Rs. 3000.75 P. A revision was filed which was allowed and the case was remanded. The Magistrate was directed to decide the case according to law. The learned Magistrate then again sat down to decide the matter and this time accepted "supurdar's" account and directed him to deposit Rs 24/-. Again a revision was filed and the District and Sessions Judge Varanasi set aside the order and again directed the Magistrate to decide the matter according to law. The Magistrate again sat down to decide the matter and without taking any evidence afresh issued a direction to the supurdar to deposit a sum of Rs. 3000.75 P. in Court or to pay 1/2 of the amount to each of the parties, and on its failure to bear necessary consequences. A third revision was then filed being Criminal Revision no. 103 of 1979. It came for decision before Sri B. B. Agarwal, the then It Additional Sessions Judge, Varanasi.
(3.) THE learned Additional Sessions Judge took into account the law laid down in the case of Ram Narain v. Jakari Shukla, 1973 ACC 335. He also considered the case of Bhagwan Singh v. Ganga Singh, 1963 AWR 707 and the case of Baqridi v. Indra Vir Singh, 1968 Criminal Law Journal 1531. In the light of the law laid down in these cases he came to the conclusion that the Magistrate can not direct the "supurdar" either to render account or to deposit a specific amount of money arising out of the attached land and if he does so, the order will be without jurisdiction. He was, therefore, of the view that the accounting can only be called upon by the Civil Court and what is open to the Criminal Court is only to record a finding that the account submitted by the "supurdar" is bogus and then to proceed against the "supurdar" for breach of criminal trust. THE parties will however the entitled to go in civil litigation for realisation of the amount. With this finding he allowed the revision and set aside the order of the learned Magistrate. This legal position came up for consideration before a Division Bench of this Court in the matter of Jangilal v. Dwaraka Prasad, 1987 AWC 660=1987 ACrR 320. The cases of Ajgoot Singh v. Rex, AIR 1950 Alld. 490, Bhagwan Singh v. Ganga Singh, 1963 AWR 707, Baqridi v. Indira Vir Singh, 1968 CrLJ 1531, Jhaboo v. Laxmi Narain, 1970 CrLJ 1459 and Ram Narain v. Jakari Shukla, 1973 ACC 335 were all considered by the Division Bench and it was held that they did not lay down good law.;