Delhi High Court
Juhi Modi vs Neeraj Gupta & Another on 30 September, 1999
Equivalent citations: 1999VIAD(DELHI)178A, 82(1999)DLT167, II(1999)DMC668
Author: K.S. Gupta
Bench: K.S. Gupta
ORDER K.S. Gupta, J.
1. This petition under Section 482, Cr.P.C. read with Article 227 of the Constitution of India seeks the quashing of an order dated 22nd February, 1999 passed by a Metropolitan Magistrate by which items listed at Nos.1 & 8 of the seizure memo dated 15th October, 1998 were ordered to be delivered to Neeraj Gupta, respondent No.1 on his executing super diginama in the sum of Rs. 30,000/-.
2. It is admitted case of the parties that after the registration of FIR No.997/98 under Sections 406/498-A/34IPC PS Sriniwas Puri on the complaints made by the petitioner against her husband respondent No. 1 and others on 14th October, 1998, a raid was conducted by the Police and, amongst others, one double bed, one sofa set and one dressing table were seized from the bed room of petitioner and respondent No. 1. These items are listed at Sl. Nos. 1 & 8 in the seizure memo dated 15th October, 1998. It is further not in dispute that on this application filed on 16th October, 1998 by the petitioner before the concerned Metropolitan Magistrate, by the order dated 17th October, 1998 the seized articles including at Nos. 1 & 8 were released in her favour on execution of a super diginama in the sum of Rs. 50,000/-. Letter on, respondent No. 1 filed an application for release of the items 1, 5 and 8 of the seizure memo dated 15th October, 1998 in his favour. During the course of arguments prayer for release of item at Sl. No. 5 was not pressed. As noticed above, by the order under challenge items at Nos. 1 & 8 of the memo were allowed to be released on superdari in respondent No. 1's favour.
3. Respondent No. 1 claims that items at Nos. 1 & 8 are owned by GE Capital Services Ltd., with whom he was employed and he was allowed to use them by the employer. Aforesaid order dated 22 nd February, 1999 also notices that the said items of furniture were purchased by GE Capital Services Ltd. from Super Designer and Consultant and payment of the sale consideration amount was made by former to the latter through a cheque. It would not be out of place to mention that qua the said items it is alleged in the FIR that for the furniture lying in the room of the petitioner and respondent No. 1 money was to be paid by the parents of the petitioner and the father of the petitioner made payment of Rs. 2,50,000/- to be parents of respondent No. 1 on that account. However, for the reasons which I will be referring hereinafter it is not necessary to examine the rival stand taken by the parties in the matter.
4. Aforesaid orders dated 17th October, 1998 and 22nd February, 1999 seem to have been passed in exercise of the powers under Section 451 Cr.P.C. by the Metropolitan Magistrate.
5. Submission advanced on behalf of the petitioner was that the concerned Metropolitan Magistrate did not have the power to revoke or recall the order dated 17th October, 1998 and the order dated 22nd February, 1999 which has the effect of reviewing/recalling that order is thus without jurisdiction. Submission has force. Identical point came to be considered by the Apex Court in the decision in Bindeshwari Prasad Singh Vs. Kali Singh, AIR 1997 SC 2432 and it was held:-
"Even if the Magistrate had any jurisdiction to recall this order, it could have been done by another judicial order after giving reasons that he was satisfied that a case was made out for recalling the order. We, however, need not dilate on this point because there is absolutely no provision in the Criminal P.C. of 1898 (which applies to the case) empowering a Magistrate to review or recall an order passed by him. Criminal P.C. does contain a provision for inherent powers, namely, section 561A, which however, which confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil Procedure Code, the subordinate criminal courts have no inherent powers. In these circumstances, therefore, the learned Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. The remedy of the respondent was to move the Session Judge or the High Court in revision. In fact, after having passed the order dated 23.11.1968, the Sub-divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever. In these circumstance, therefore, the order even if there be one, recalling order dismissing the complaint was entirely without jurisdiction. This being the position, all subsequent proceedings following upon recalling the said order would fall to the ground including order dated 3.5.1972, summoning the accused which must also be treated to be a nullity and destitute of any legal effect....."
6. Ratio in Bindeshwari Prasad Singh's case (supra) was quoted with approval by the Supreme Court in the decision in Maj. Genl. A.S. Gauraya and another Vs. S.N. Thakur and another, . Evidently, aforesaid order dated 22nd February, 1999 has the effect of reviewing/recalling the previous order dated 17th October, 1998 by which the said items of furniture at Nos. 1 & 8 of the seizure memo dated 15 October, 1998 alongwith other articles were released on superdari in petitioner's favour. Order under challenge thus deserves to be set aside being without jurisdiction.
7. Resultantly, the petition is allowed and the order dated 22nd February, 1999 is set aside.