Rajendra Nath Sinha, J. - (1.) This is to consider an application under Section 401 read with Section 482 of the Criminal Procedure Code, 1973. It relates to an impugned order dated 23.4.03 passed by the Learned Sub-divisional Judicial Magistrate, Kharagpur, Paschinm Medinipur in connection with MP Case No. 9 of 2003 relating to return of maruti (omni) van No. WB-34H/9988 seized by Kharagpur (Town) P.S. vide G.D.E. No. 150 dated 3.03.03.
(2.) The 'LIS' in between the parties are as follows : Pursuant to a higher purchase agreement dated 13.2.02 executed in between the petitioner and the Opposite Party No. 2. M/s. Magma Leasing Ltd., the petitioner is required to pay 36 installments on and from 13.2.02 Rs. 7,074/- per month together with additional finance charges of Rs. 37/- per month on delayed payment. The petitioner accordingly made payment of monthly installment up to December 2002 totaling Rs. 1,26,250/- on diverse dates and the said Opposite Party accepted the same. On 3.3.03 the petitioner's vehicle was repossessed without giving the petitioner any information or opportunity to state the difficulties by the Opposite Party and given to the Kharagpur (town) P.S. for keeping in safe custody vide the aforesaid G.D.E. No. 150 dated 3.3.2003 without starting any specific case on the ground of default on the part of the petitioner. The petitioner on receipt of the said information filed an application on 5.3.03 being MP Case No. 9 of 2003 pursuant to the direction passed by the Learned Magistrate a report was submitted on that date by the IC Kharagpur (Town) P.S. and on consideration of the aforesaid report by the impugned order was pleased to refuse the petitioner's claim and directed release of the vehicle in question in favour of Opposite Party No. 2. The petitioner is stated to have requested the Opposite Party to bear with him for sometime but they choose to repossess the vehicle without any prior information and opportunity of being heard that the petitioner intends to make payment and is suffering day to day loss of income.
(3.) It has been submitted that the impugned order is bad in law and suffers from total non-application of mind and the same is liable to be set aside fourth with. In course of hearing Mr. Mukherjee, Learned Counsel for the petitioner has submitted that the petitioner has been deprived of the possession of property without due process of law. Mr. Mukherjee has relied on the reported decision in 2003(2) WBLR (Cal) 4, Amal Kumar Bose v. State of West Bengal and Ors. The aforesaid case is identical like that of the present case in hand. In the aforesaid case whereon the petitioner purchased a vehicle under higher purchase agreement executed with the H.S.B.C. Ltd. As monthly installment for the month of May, 2003 could not be paid due to failure of the banker of the petitioner, the muscle men of HSBC Ltd. took forcible possession of the vehicle from the petitioner. Petitioner approached the police authority for recovery of the vehicle. As the police authorities did not take step in the matter the petitioner moved the High Court challenging the inaction of the police authority.;