Delhi High Court
Padam Chand And Anr. vs State (Govt. Of Nct Of Delhi) & Anr. on 25 March, 2009
Author: Sunil Gaur
A-18 & 19
* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on : March 18, 2009
Judgment delivered on : March 25, 2009
+ (1) Crl. M.C. No. 1581/2007
% Padam Chand and Anr. ... Petitioners
Through: Mr. J.L. Gupta, Advocate
versus
State (Govt. of NCT of Delhi) & Anr. ... Respondents
Through: Mr. R.N. Vats, Additional public
Prosecutor for the State
+ (2) Crl. M.C. No. 992/2007
% J.C. Gupta and Co. ...Petitioners
Through: Mr. J.L. Gupta, Advocate
Versus
State (Govt. of NCT of Delhi) & Another ...Respondents
Through: Mr. R.N. Vats, Additional public
Prosecutor for the State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
SUNIL GAUR, J.
1. The order impugned in the above captioned petitions is
of 23rd February, 2007, of the revisional court passed in
Crl. M.C. No. 1581 & 992 of 2007 Page 1
Criminal Revision No. 89/2006, whereby a direction has been
given to the trial court to take steps in pursuance of the
provisions of Sub-Section 5 of Section 145 of the Code of
Criminal Procedure, concerning restoration of the possession
of the property in question to the party from whom it was
taken.
2. Since the order impugned in these two petitions is
common one, therefore, these two petitions were heard
together and are being disposed of by this common order.
3. After having heard both sides and upon perusal of the
impugned order as well as record of this case, it emerges
that in the impugned order, perhaps due to a typographical
error, provision of law has been incorrectly quoted. The
restoration of the possession of the property in question to
the party from whom it was taken, can be done by resorting
the Sub-Section 6 read with Sub Section 4 of Section 145 of
the Code of Criminal Procedure and not by resort to Sub-
Section 5 of Section 145 of the Code of Criminal Procedure.
4. Be that as it may. The admitted position is that
proceedings under Section 145 of the Code of Criminal
Procedure were dropped vide order of 26th August, 2005. The
possession of the property in question, during the aforesaid
proceedings, was taken from respondent No.2 and was
Crl. M.C. No. 1581 & 992 of 2007 Page 2
delivered to petitioners- Padam Chand and his wife- Rani
Devi, who in turn had rented out the property in question to
J.C. Gupta, who is the petitioner in Criminal M.C. No.
992/2007.
5. It is true that aforesaid petitioner- J.C. Gupta was not a
party to the proceedings under Section 145 of the Code of
Criminal Procedure and was not a party to the revisional
proceedings, from which the impugned order springs out,
therefore, strictly speaking, petitioner- J.C.Gupta has no
locus standi to file Criminal M.C. No. 992/2007.
6. Since the impugned order is under scrutiny in Criminal
M.C. No. 1581/2007 of Padam Chand, therefore, instead of
not-suiting petitioner- J.C. Gupta on the ground of
jurisdiction, this court proceeds to examine the impugned
order on merits.
7. Upon doing so, it is found that the decisions reported in
UP, AIR 1977 Supreme Court 619; 106 (2003) DLT 388;
117 (2005) DLT 417, 2 SCR 69 and (2004) 1 Supreme
Court Cases 769, relied upon by the petitioners deal with
an altogether different proposition and therefore, they do
not advance the case of the petitioners herein, in any
manner whatsoever. For instance, the question of "settled
possession" considered by the Apex Court, in its decision
Crl. M.C. No. 1581 & 992 of 2007 Page 3
reported in 2004 (1) SCC 769, is of no relevance in the
facts of the present case. It is noted in the impugned order
that the trial court had not restored the possession of the
property in dispute to the petitioners (respondents herein),
when the proceedings under Section 145 of the Code of
Criminal Procedure were dropped on 26th August, 2005.
8. The aforesaid order of 26th August, 2005, had
admittedly attained finality. The revisional court in the
impugned order has relied upon the case of Sankatha Prasad
Mishra and others reported in 1977 Crl. L. J. 361 to hold as
under:-
"Therefore, it is evident that when possession of the
property was taken from petitioner and proceedings have
been dropped by the learned Magistrate, since he lacked
jurisdiction for want of preliminary order under Sub-Section
(1) of Section 145 of the Code, the magistrate is under an
obligation to restore the possession to the petitioner".
9. Learned Counsel for the petitioners have not been able
to distinguish the aforesaid decision in Sankatha Prasad
Mishra and others (supra), relied upon by the trial court.
10. Since the proceedings under Section 145 of the Code of
Criminal Procedure, have been dropped on account of lack of
jurisdiction, therefore, possession of the property in
Crl. M.C. No. 1581 & 992 of 2007 Page 4
question, has to be restored to the person, from whom it was
taken. There is no illegality or infirmity in the impugned
order. There is no merit in these two petitions and, therefore,
they are accordingly dismissed.
11. These two petitions stand accordingly disposed of.
Sunil Gaur, J.
March 25, 2009
rs
Crl. M.C. No. 1581 & 992 of 2007 Page 5
