Baidyanath Murmu vs Bhagwat Murmu and Others

This is an application in revision by the informant in a criminal case in which the even accused were put upon trial before -& Munsif Magistrate of Pakur for offences punishable under Sa. 143 and 380 of the Penal Code. They were acquitted on 31-8.1967. There was no appeal against it by the prosecution. On 25 10 1967 the accused, who were acquitted, made an application to the trial court to direct the Officer-in-charge, Pakuria police station, to return the buffaloes to the acquitted accused Surendra Murmu from whose possession the police had seized the same and given to one Shib Marandi to be kept in his custody till the disposal of the case. The learned Munsif Magistrate by his order dated 15-11-1967 allowed the prayer. The present application is directed against the said order.

The matter was first heard by a single Judge of this Court who by his order dated the 6th of August, 1969, referred it to a Division Bench as a Bench'' decision of this Could in the case of Deopujan Mahto Vs. Kukur Ahir, was sought to be distinguished on behalf of the opposite party.

We have heard Mr. S. R. Ghosal, appearing on behalf of the petitioner; and Mr. Mahendra Prasad Pandey for the opposite party. The contention of Mr. Ghosal is that the impugned order is illegal as it was passed without a notice to the petitioner. who was interested in the disposal of the property, namely, the buffaloes. learned Counsel has relied on a decision of this Court in AIR 1940 Fat 198. On the other band, Mr. Pandey has tried to distinguish it on the ground that nobody was heard in Deopujan Mahto Vs. Kukur Ahir, neither the Crown (King Emperor) nor the complainant. In the present case Mr. Pandey''s contention is that the Court Sub-Inspector, obviously representing the State, was heard and therefore, Deopujan Mahto Vs. Kukur Ahir, has no application to the facts of this case.

We are unable to accepts this contention as corrects. It is true that Section 517 of the Criminal P.C. does not in terms require the issue of any notice and if an order regarding disposal of property is passed simultaneously with the judgment in the criminal case, it is not in dispute that a situate notice to the parties to show cause, in respect of the disposal of the property, is not necessary. But when an application is made after some lapse of time, as it bas been so made in the present case, then it is only proper on general principles of la that the party which is affected by the proposed order should have notice of the application.

The relevant observations in Deopujan''a case AIR 1940 Pat 98 might be usefully reproduced here:

The next point taken that a final order should not have been passed without notice to the other side is in agreement with the broad general principle of procedure both in Criminal and Civil Courts that an order to the detriment of any party ought not to be passed without giving him notice and an opportunity of showing cause why it should not be made. It is true that the Section does not in terms require the issue of any such notice and if an order regarding disposal of property is passed simultaneously with the judgment in the criminal ease, no one would contend that a separate notice to the parties to show cause in respect of the disposal of the property was necessary; but when an application is made after some lapse of time, I think it only proper on general principles of law that the party to be affected by the proposed order should have notice of the application. This view has been taken in the Madras High Court in ILR 46 Mad 162 : Arunachala Thevan Vs. Vellachami Thevan and Another, . It will be necessary therefore to discharge the order of the Sessions Judge and remit the case to him for disposal after hearing the opposite party that is to say the complainant of the criminal proceedings.

Mr. Pandey has, however, urged that since the Court Sub. Inspector was heard on behalf of the State the complainant had absolutely no locus standi in the case and he was rightly not heard. In other words, his contention is that a complainant, is., the private party should not be heard in a case in which the State was the party. Mr. Pandey wanted to cite before us a number of decisions in support of his contention. But as we thought that those cases were not pertinent for the poin that bas to be decided in the case, we did not permit him to cite cases on analogy for which there were DO direct cases. The difference is obvious. In a case which has proceeded on a police report, a private party has no locus standi and the Supreme Court in the case of Thakur Ram Vs. The State of Bihar, has laid down certain principles for guidance. Those principles cannot be stretched to be read for a case in which a situation like the present one has arisen, namely, for the disposal of the property. It should be borne in mind that an order u/s 517 of the Criminal P.C. is a discretionary one and it invests the Magistrate with a discretionary power and it is a rule of law that such power must be exercised judiciously, that is, according to the sound principles of law and not in an improper manner. That discretion of the Magistrate is open for correction by this Court where it finds that it had been exercised in violation of judicial principles. We, therefore, respectfully agree with the observations made in Deopujan Mahto''s case A.I.R.. 1940 Pat 198.

For these reasons we are of opinion that the matter must go back to the learned Magistrate for hearing after notice to both the parties. Since the matter has been long delayed, the learned Magistrate is directed to dispose of the matter within one month from receipt of the record, which should be sent down as quickly as possible.

The rule is made absolute and the application is allowed.