TRIBHOVANDAS JAMNADAS KANSARA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) One Zubeida Hussain filed a criminal complaint at Dhoraji Police Station complaining that a big vessel described as TAPELA was given to one Jilubai Alimamad for use and he has committed criminal breach of trust in respect of the same. The Police Station Officer registered the offence under sec. 406 of the Indian Penal Code and in the course of investigation recovered muddamal vessel from the shop of Kansara Tribhovandas Jamnadas. When the case came up before the Court after the charge sheet was submitted original complainant Zubeida and accused Jilubhai Alimamad submitted a statement on 7-7-69 indicating to the Court that they have mutually settled the dispute and have compounded the offence and composition may be recorded and the accused may be acquitted. This statement is at Exh. 7. On the very day that is on 7-7-69 the learned Magistrate accepted the statement compounding the offence and acquitted the accused. Simultaneously the learned Magistrate passed an order under sec. 517 of the Criminal Procedure Code directing that the muddamal vessel be returned to the complainant. Before passing this order Kansara Tribhovandas Jamnadas from whose shop the muddamal vessel was attached was neither heard nor any notice was given to him. When Kansara Tribhovandas Jamnadas came to know of the order passed by the learned Magistrate under sec. 517 of the Criminal Procedure Code disposing of the muddamal property he gave an application that the muddamal vessel was recovered from his possession and he was entitled to possession thereof and it could not have been disposed of without hearing him. The learned Magistrate rejected this application observing that as the order disposing of the muddamal is already made by him it is not open to him to review his own order. Being aggrieved by this order Kansara Tribhovandas Jamnadas preferred Criminal Revision Application No. 32 of 1969 to the Court of the Additional Sessions Judge Rajkot at Gondal. The learned Additional Sessions Judge was of the opinion that the learned Magistrate was in error in passing the order for disposal of muddamal property without giving an opportunity to the person from whose possession it was recovered. The learned Additional Sessions Judge felt that while exercising revisional jurisdiction it was not open to him to pass a final order in the matter and therefore he submitted the case to this Court under sec. 438 of the Criminal Procedure Code. That is how the matter has come up before this Court.

(2.) When Kansara Tribhovandas Jamnadas preferred Criminal Revision Application against the order of the learned Magistrate disposing of the muddamal property under sec. 517 of the Criminal Procedure Code to the learned Additional Sessions Judge the learned Additional Sessions Judge should have exercised jurisdiction under sec. 520 of the Criminal Procedure Code which reads as under:-

(3.) A bare perusal of sec. 520 of the Criminal Procedure Code would show that when the Court is called upon to exercise jurisdiction under the said section it is open to the Court to pass final order in the matter. The words in sec. 520 that the Court of Appeal confirmation reference or revision may modify alter or annul such order and make any further orders that may be just leave no room for doubt that the Court exercising revision jurisdiction against the order made under sec. 517 of the Criminal Procedure code by subordinate Court has final powers to dispose of the matter under sec. 520 and it is not necessary for that Court to resort to sec. 438 of the Criminal Procedure Code and to refer the case to the High Court. This point in my opinion is now no more res integra and it is concluded by a Full Bench Decision of the Bombay High Court in the case of Walchand Jasraj Marwadi v. Hari Anant Joshi A.I.R. 1932 Bombay 534. The relevant observation of the Full Bench is as under:-