G.R.Bhattacharjee, J. - (1.) This revisional application under section 482 Cr.P.C. is directed against the order No.22 dated 7-9-91 passed by the learned Chief Metropolitan Magistrate, Calcutta in G.R. Case No.1610 of 1991 under sections 448/380/34 of the Indian Penal Code. The respondent No. 2, Durgadas Dutta who is the owner/proprietor of M/s. Aristrocrat Electronics filed a petition of complaint against the present petitioner under section 156(3) Cr.P.C. which was referred to the Police for investigation. The complainant claimed that he was a tenant in respect of the Room No. G-4A of the premises of Kamalalay Centre at 156A, Lenin Sarani with effect from 2-5-90 although physical possession of the said room was given on 7-4-90 and he kept goods in the said room worth about Rs. 2 lakhs and also issued an Account Payee Cheque for Rs. 16,000/- being the rent for the months of September 1990 to April 1991 and also paid Rs. 50,000/- as advance adjustable against rent. The further allegation of the complainant is that on 6-4-91 he demanded rent bills and for adjustment of the advance amount but the petitioner became adamant and asked the complainant to vacate forthwith. The complainant filed a petition under section 144 Cr. P.C. before the Executive Magistrate but on 12-4-91 when he went to open his shop in the morning he found the shutter-gate of the room open and also found that all the goods were removed by the accused persons and the accused No.1, the present petitioner was found inside the room. The complainant filed another petition under section 144(2) Cr.P.C. and also referred the matter to the Shop and Office Owners Association of the same premises. It appears that thereafter on 22nd April, 1991 the complainant filed the abovementioned complaint under section 156(3) Cr. P.C. on the basis of which section H (DD) Case No. 225 dated 17-5-91 was registered giving rise to the connected G.R. Case No.1610 of 1991 under section 448/380/34 I.P.C. In course of the investigation of the said case the present petitioner was arrested by the police and was subsequently released on bail. On 7-6-91 the police, on the basis of a search warrant, searched the concerned shop room and prepared inventory list. It is the case of the petitioner that nothing incriminating was found from the concerned shop room and the police prepared several seizure lists dated 3-6-91, 6-6-91 and 7.6.91 showing recovery of stolen articles from the backside of the lift at the 2nd floor of the premises and from the residence of the petitioner. It appears that after search of the concerned shop room the police closed the room by putting their own pad-lock. By his impugned order dated the 7th September, 1991 the learned Chief Metropolitan Magistrate directed the investigating Officer to make over the key of the said room to the de facto complainant on bond with an undertaking to produce the same before the Court as and when required.
(2.) The contention of the petitioner is that by a 'Consultancy Agreement' dated 30-4-90 he accommodated the complainant with a portion of the said room for a period of 11 months with effect from 2-5-90 and as per the terms and conditions of the said agreement the petitioner by his letter dated 15-12-90 served 3 months prior notice upon the complainant asking him to deliver vacant and peaceful possession of the said room on or before the 2nd April, 1991 together with fittings and fixtures and pursuant to the said notice the complainant handed over peaceful and vacant possession of the said room to the petitioner in presence of witnesses on 6-4-91. It is also the allegation of the petitioner that after getting possession of the said room while the petitioner with the help of his men were removing on 7-4-91 the glow sign-board fixed on the wall of the said shop room by the complainant, the complainant and his men wanted to create disturbance and later in that evening they tried to break open the pad-lock of the shop room forcibly but was restrained by the darwan of the said premises and on the next day the complainant being accompanied by some unknown persons came and threatened the petitioner With dire consequences and the petitioner lodged a G.D. and filed an application under section 144(2) Cr. P.C. The petitioner on 10-4-91, also filed a Title Suit before the City Civil Court, Calcutta along With an application for injunction restraining the complainant from interfering with the petitioner's possession of the said shop room and the complainant also entered appearance in the said Suit as defendant and filed written objection against the application for injunction. The learned Chief Metropolitan Magistrate has recorded in his impugned order that the learned Advocate appearing on behalf of the accused had admitted that in the petition it had not been disclosed how the accused could take possession of the said room when the facts stood that he had all along accepted rent for the said premises at the rate of Rs. 2,000/- per month from September 1990 to October 1991 by cheque. The learned Magistrate has further recorded that the acceptance of such rent by cheque was admitted and the bank's letter stating that all the cheques had been cleared and credited to the account of the accused was also shown to the learned Magistrate. The learned Magistrate further recorded that the learned Advocate appearing for the accused verbally submitted that the de facto complainant was merely a licensee and not a tenant and that the accused had taken possession of the said room before the incident. The learned Magistrate observed however that such contention had not been raised in the petition and that even a licensee could not be evicted from a room except according to law. The learned Magistrate as I have already noted directed the investigating Officer to make over the key of the room to the complainant on bond.
(3.) It has been submitted by Mr. Sekhar Kumar Basu on behalf of the petitioner that by directing the Investigating Officer to handover the key to the opposite party on bond the learned Magistrate has exercised a jurisdiction which did not vest in him inasmuch as by passing the impugned order the learned Magistrate has given temporary possession of the concerned room which is immovable property in favour of the opposite party. It has been further submitted that it is only under section 456 Cr. P .C. that a Magistrate can direct restoration of immovable property to any person but such power can be exercised by the Magistrate only in certain specified circumstances when a person has been convicted of an offence attended by criminal force or show of force or by criminal intimidation. Since in the present case the trial has not yet been held, not to speak of conviction, the learned Magistrate, it has been argued, had no jurisdiction to pass the impugned order directing delivery of the key which was not a seized property. It has been further argued by Mr. Basu that even section 456(4) provides that no order made under the said section shall prejudice any right or interest to or in such immovable property which any person may be able to establish in a civil suit. The contention is that since a civil suit between the parties and a petition of temporary injunction in such civil suit in respect of the self-same property are pending before the civil court, the learned Magistrate had no jurisdiction to pass any order even regarding the temporary possession of the immovable property. While it is correct that section 456 Cr. P .C. does not apply to a case where no order of conviction has yet been made, sub-section (4) thereof however does not debar a Magistrate from passing an order of restoration of possession of immovable property in a fit case simply because a civil suit may be pending, although the question whether any such order for restoration of possession should be made by a Magistrate during the pendency of a civil suit is a matter which depends upon the facts and circumstances of the particular case. All that sub-section (4) of section 456 provides in effect is that any order for restoration of possession of an immovable property which a Magistrate may pass in a particular case under section 456 Cr. P.C. will not affect the claim of any person to such property which he can establish in a civil suit. In other words, such order of a Magistrate will not be a bar for a person to establish his right, title and interest, if any, in such property in a civil suit. The civil court in such a civil suit will decide the claim on merits without being influenced by or even without taking into consideration the order of the Magistrate passed under section 456 (4). Be that as it may, in the present case obviously the impugned order was not passed nor could have been passed under section 456 Cr. P.C. which is not attracted at a pre-conviction stage of the criminal proceeding.;