Calcutta High Court
Metal Box (India) Ltd. vs State Of West Bengal on 10 April, 1997
Equivalent citations: (1999)IIILLJ1349CAL, 1997 A I H C 2870, (1998) 28 CORLA 359, (1999) 3 LABLJ 1349, (1997) 2 CAL HN 423
ORDER Dutta, J.
1. The present application under Section 482 of the Code of Criminal Procedure, 1973 ('Cr. PC') and Article 227 of Constitution of India is directed against an order dated July 31, 1996 passed by the learned Chief Judicial Magistrate, Alipore in complaint case No. C 1064 of 1996 rejecting the petitioner-company's application under Section 630(2) of the Companies Act, 1956 ('the Act).
2. The petitioner-company acquired ownership of flat No. 168, Minto Park Syndicate in the premises No. 13, Debendra Lal Khan Road, Calcutta. The respondent No. 2 joined the company as general finance manager sometime in July 1991. He was allotted the aforesaid flat for use and occupation of his own and his family during the course of his employment in the petitioner company. The respondent No. 2 by addressing a letter dated February 3, 1994 to the company submitted his resignation expressing his desire to be released from the services of the company on the closure of business hours on June 30, 1994 and on that very day, the petitioner-company accepted his resignation. The respondent No. 2 by his letter dated February 4, 1994 applied for cancellation of his signatures from all bank accounts, power of attorney, trusteeship of provident fund and pension fund of the company. By a letter dated June 16, 1994, the secretary to the petitioner-company recorded the modalities of the handing over of the company's properties by the respondent No. 2 and informed the respondent No. 2 that he was to vacate the flat as well as the company car by June 30, 1994. He was also informed that his salary for May and June, 1994 along with deferred salary refund as applicable along with perquisites as per his entitlement would be paid to him simultaneously with the handing over of the possession of the company flat and car on June 30, 1994. The respondent No. 2 by his letter dated June 17, 1994 informed the petitioner-company that he had made alternative arrangement for his residential accommodation which would be ready by the end of December 1994 and requested the company for allowing him to continue to use the flat till December31, 1994 undertaking to hand over possession of the flat even earlier in case his alternative accommodation gets ready. The petitioner-company strictly on humanitarian grounds and as a very special case permitted the respondent No. 2 to use the flat till December 31, 1994. It was made clear by the petitioner-company by its letter dated June 22, 1994 that its representatives would go to take possession of the flat on the 1st day of August, 1994. On July 6, 1994, the respondent No. 2 returned the company car. But on July 21, 1994. the respondent No. 2 repeated his request for extension of time to retain the flat till December 31, 1994. The company representatives went to take possession of the flat from the respondent No. 2 and gave him two cheques for the sum of Rs. 51,370 and 63,562. But the respondent No. 2 refused to accept the payments and handover possession of the flat. The petitioner-company accordingly launched a prosecution by filing a complaint against the respondent No. 2 on September 20, 1994 under Section 630 alleging that the respondent No. 2 had wrongfully withheld the flat and praying for issue of process under Section 630(1) against the respondent No. 2 and also for a direction under Section 630(2) upon the respondent No. 2 to handover vacant and peaceful possession of the flat.
3. The learned Chief Judicial Magistrate summoned the respondent No. 2 who appeared on February 22, 1995 and pleaded not guilty.
4. Thereafter the petitioner-company filed a separate application under Section 630(2) praying for an order directing the accused to deliver possession of the flat in question pending disposal of the case.
5. The respondent No. 2 filed a written objection against the said application alleging that the application was not maintainable as the trial had not yet concluded.
6. The learned Magistrate rejected the said application under Section 630(2) holding, inter alia, that unlike the Apex Court or the High Court and unlike the provisions of Section 151 of the Code of Civil Procedure, 1908 ('the CPC') he has no jurisdiction to exercise any inherent power under the Cr. PC and that as such he cannot direct the delivery of possession of the flat at the interlocutory stage pending conclusion of the trial.
7. Mr. Aloke Kr. Mitra, learned counsel appearing for the petitioner-company, submitted that the respondent No. 2's right to continue to be in possession of the flat concerned was coterminous with the terms of his employment under the petitioner-company and such right would have automatically been extinguished with his resignation, on the expiry of June 1994. But Since the respondent No. 2 made a written request to the company for permitting him to continue to be in possession of the fiat till the end of December 1994 on the representation that the residential accommodation which he himself arranged for would by that time be ready and available to him and as the petitioner-company had only acceded to his request till the end of July, 1996 on humanitarian grounds and as a special case, the respondent No. 2's right was extended till the end of July 1994 and finally stood extinguished on the expiry of July 1994 giving rise to an obligation to handover the flat back to the company. The retention of the flat by the respondent No. 2 with effect from first of August, 1994 cannot but be 'wrongful withholding' of the property of the company within the meaning of Section 630(2) of the Act. The fact that the company flat in question is being wrongfully withheld by the respondent No. 2 is quite explicit on the basis of the respondent No. 2's own admissions which are contained in his letters dated February 3, 1994, June 17, 1994 and July 21, 1994 addressed to the petitioner-company and which formed matters of record, the respondent No. 2 should not be allowed to withhold the property till the conclusion of the trial. The respondent No. 2 has no right to resist delivery of the property to his erstwhile employer namely the petitioner-company in the absence of any express agreement to the contrary or any independent capacity or status to continue in occupation and possession of the property which stood allotted to him under the terms of his employment. If the respondent No. 2 is allowed to withhold property till the conclusion of the trial only on the hypertechnical ground that he has not yet been formally found to be guilty of the offence of wrongfully withholding of the property as contemplated under clause (b) of Sub-section (1) of Section 630, it would amount to permitting him to make clever evasion and perpetrate legal fraud and defeat the very object of Section 630. It was strenuously argued on behalf of the petitioner that this Court in exercise of its inherent power under Section 482 of the Cr.PC should pass an order directing immediate delivery of the flat concerned by the respondent No. 2 to the petitioner-company even during the pendency of the trial before the lower Court.
8. In support of his above contentions, Mr. Mitra relied on two Supreme Court decisions in the case of Baldev Krishna Sahi v. Shipping Corporation of India Ltd. reported in (1988-II-LLJ-202) and in the case of Shrimati Abhilash Vinodhumar Jain v. Cox Kings (India] Ltd.) reported in (1996-III-LLJ (Suppl)-354).
9. Mr. Sekhar Kr. Basu, learned counsel appearing for the respondent No. 2 sought to refute the above contentions on behalf of the petitioners. It is submitted by him that the letters which are said to have been addressed by the respondent No. 2 to the petitioner-company cannot be looked into by this Court at this stage as evidence. The power to direct delivery of the company property under Sub-section (2) of Section 630 can be exercised by a Court only after it finds that the said property has been wrongfully withheld. In fact, the alleged wrongful withholding of the property constitutes the offence under Section 630(1) for which the respondent No. l is facing the trial before the lower Court. His plea was taken under Section 251 of the Cr.PC and he pleaded not guilty and claimed to be tried. Had he admitted the accusation, the learned magistrate would have relied on such admission and convicted him then and there, but the magistrate decided to proceed with the trial. As such, the respondent No. 2 cannot be deemed to have made any admission with regard to the accusation. In his written objection directed against the separate petition that was filed on behalf of the complainant company under Section 630(2), the respondent No. 2 did not also admit any of the allegations made in that petition. The alleged letters of the respondent No. 2 on which the petitioner-company seeks to rely cannot be relied upon and treated as legal evidence at this stage. The said documents will be treated as evidence only after they are formally proved and brought into legal evidence. That stage will arise only after the complainant produces his witnesses under Section 254 of the Cr.PC before the Court below and the respondent No. 2 gets his opportunity to cross-examine them and, if necessary, to adduce rebutting evidence. The respondent No. 2 cannot also be called upon by this Court to admit or deny the genuineness of the letters that are alleged to have been addressed by him to the petitoner-company, nor is the respondent No. 2 legally bound to disclose his defence on this point at this stage. Such a course would deprive him of the protection that has been afforded by the Constitution of India under Article 20(3). An order under Sub-section (2) of Section 630 cannot be made by a Court until and unless it records a finding to the effect that the property concerned has; been wrongfully withheld and the occasion for receding of such a finding of fact will arise only after the conclusion of the trial. As such, the prayer for a direction under Section 630(2) is premature and not maintainable in law.
10. So far as the Supreme Court decisions cited on behalf of the petitioner are concerned, Mr. Basu submitted that they are not application in the facts and circumstances of this case. According to Mr. Basu, they do not lay down any authority for the proposition that a direction for the restoration of the property under Section 630(2) can be made even before the conclusion of the trial for an offence under Sub-section (1) of Section 630. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Mr. Basu submits that in B.K. Sahi 's case (supra), the only question involved was as to the meaning of the terms 'officer or employee' used in Sub-section (1) of Section 630 and the words 'any such property' in Clause (b) thereof in view of the conflict of opinion between the High Courts of Calcutta and Bombay on that question. The Supreme Court overruled the Calcutta view and held that the term 'officer or employee' of a company applies not only to existing officers or employees but also to past officers or employees. In the other Supreme Court case of Abhilash Vinodkumar Jain (supra), the employee died in harness and his legal heirs approached the High Courts for quashing of the criminal proceeding under Section 630 on the ground that the provisions of Section 630 cannot be invoked against the legal heirs of the deceased employee. The High Court dismissed their petitions and the Supreme Court also dismissed the appeals holding that the term 'officer or employee' includes their heirs and legal representatives and also any one claiming through them. The question that conforonts us in the present case, Bameh, the question whether the direction to deliver property can be given under Sectiorr 630 dinning the pendency of the criminal prosecution under Sub-section (1) did not actually arise for decision in either of the said two Supreme Court cases, nor was it decided. As such, the said two decisions are not binding on this Court as laying down the law within the meaning of Article 141 of the Constitution of India and will be of no avail to the petitioner-company.
11. In support of his contention on the question of non-applicability of the above two decisions. Mr. Basu cited the decisions reported in BR Sharma v. Union Territory of Pondicherry ; B.S. Rai v. Union Terrirtory of Pondicherry ; State of Orissa v. Sudhansu Shekhar Mishra and Union of India v. Dhanwanti Devi.
12. Section 630 of the Act runs in the following words :
"Penalty for wrongful withholding of property - (1) If any officer employee of a company -
a) wrongfully obtaines possession of any property of a company of a company ; or
(b) having any such property in his possession, wrongfully withholding it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by this Act ;
HE shALL, ON THE COMPLAINT OF THE COMPANY Or any creditor or contributory thereof, be punishable with fine which may extend to one thousand rupees.
(2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a time so be fixed by the Court, any property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years."
13. Section 630 is in two parts, Sub-section (1) deals with two contingencies set out in Clauses (a) and (b). In the present case we are not concerned with clause (a). Clause (b) also deals with two different contingencies and here we are concerned with only the first contingency which arises when an officer or employee of a company having any property of the company in his possession wrongfully withholds it. The acts or omissions mentioned in clauses (a) and (b) of subsection (1) are punishable with fine which may extend to Rs. 1,000. Sub-section (2) also deals with an offence and the said offence is punishable with a harsher punishment, namely, imprisonment for a term which may extend to two years. In my view, this offence is constituted by the disobedience by such officer or employee of an order of the Court, trying the offence under Sub-section (1), for delivery of or refunding any property of the company wrongfully withheld within a time fixed by the Court.
14. The complaint that was lodged on behalf of the petitioner-company under Section 630 contained certain documents as its annexures. Such documents amongst others included the three letters addressed by the respondent No. 2 under his signature to the petitioner-company and some letters addressed by the company to the respondent No. 2. The following facts would be borne out from the aforesaid letters. The respondent No. 2 joined the petitioner-company as its officer and was allotted the flat concerned by the company under the terms of his employment for his use and occupation during the subsistence of his employment. On February 3, 1994 the respondent No. 2 expressed his desire to resign his office on the close of business on June 30, 1994. The said resignation was accepted by the petitioner-company on February 3, 1994 and it was made known to the respondent No. 2 that he would have to vacate the flat on the expiry of June 30, 1994. On June 17, 1994, the respondent No. 2 by addressing a letter to the company expressed his difficulty to vacate the flat on the scheduled date and made a specific request to the company for permitting him to continue to be in possession of the flat till the end of December 1994 giving the petitioner-company to understand that he had already made arrangements for his alternative residential accommodation which was expected to be ready and made available to him by the end of December 1994. In case his alternative residential accommodation was ready earlier than December 1994 the respondent No. 2 did make it clear that he would intimate to the company the date of his handing over of the possession of the flat. The company purely on humanitarian grounds and as a special case by its letter dated June 22, 1994 acceded to the respondent No. 2's request till the end of July 1994. The respondent No. 2, however, by addressing a letter dated July 21, 1994 reiterated his request to continue to hold the property til! the end of December 1994. The respondent No. 2 did not handover possession on the expiry of July 1994.
15. In Baldev Krishna Sahi 's case (supra), the employee retired from the service of the company on about September 30, 1994. On September 26, 1984 the officer addressed a letter requesti ng the company to permit him to continue to live in the company's premises during the period of his accumulated leave after his retirement, that is for a period of six months, undertaking to vacate the flat as early as possible and the company on humanitarian grounds acceded to his request and permitted the employee to stay on in the company's flat for six months after his retirement. After the expiry of the said period of six months, the company addressed a letter requesting him to vacate the premises and since the petitioner fai led to vacate the flat, the company initiated proceedings for his eviction under the Public Premises (Eviction of Unauthorised Occupants )Act, 1971. The estate officer directed his eviction. The employee carried an appeal to the city civil and sessions Court against the order of eviction and the appeal was dismissed. He then preferred a revision in the High Court and the High Court allowed the same, set aside the eviction order and directed the estate officer to give personal hearing to the petitioner. Instead of availing of that opportunity, the petitioner moved the High Court by a petition under Article 226 of the Constitution and obtained ad interim stay of the proceeding before the estate officer. A few days thereafter, the employee instituted a suit, seeking a declaration that he was a tenant of the disputed flat. During the pendency of the suit, the company lodged a complaint under Section 630 alleging that the employee was wrongfully withholding the flat in question which had been given to him for his residence during the period of his employment and thereby committed an offence under Section 630. The Magistrate took cognizance of the complaint against the employee and directed issue of process. The employee took up the matter before the Supreme Court in a special leave petition which was dismissed. While dismissing the petition, the Supreme Court gave one month's time to the said petitioner to vacate the premises failing which gave the liberty to the respondent to take such proceedings as the law provides. At the same time, the Supreme Court directed the learned magistrate to proceed with the trial of the criminal case that was launched against the petitioner at the instance of the company under Section 630 and dispose it of as expeditiously as possible and in any event, not later than four months from the date of the order.
16. Mr Milra, appearing for the petitioner, accordingly placed his reliance on this decision of the Supreme Court and contended that this Court, in the facts and circumstances of this case, would be competent to pass an order directing the respondent No. 2 to vacate the flat concerned, within certain time to be fixed by this Court and that the pendency of the criminal trial against the respondent No. 2 cannot stand in the way of this Court giving a direction under Section 630(2) upon the respondent No. 2 to vacate the flat.
17. It would be now worthwhile to note certain observations of the Supreme Court in Baldev Krishna Sahi's case (supra). At paragraph 3, it observed:
"Any of the business organisations, both in the public as well as the private sector, are required to provide residential accommodation to their officers and employees as a condition of their service to attract better talent and have of necessity to purchase residential flats in multistoreyed buildings in large cities and towns for the use of such officers and employees during the course their employment."
17.1 At para 7, it further observed :
"The beneficent provision contained in Section 630, no doubt penal, has been purposely enacted by the Legislature with the object of providing a summary procedure for retrieving the property of the company.... It is the duty of the Court to place a broad and liberal construction on the provision in furtherance of the object and purpose of the legislation which would suppress the mischief and advance the remedy."
17.2 At paragraph 11, it quoted with approval the observations from some other decisions :
"The entitlement of an officer to the property of the company is contingent on the right and capacity of the officer by virtue of his employment..... and the duration of such right would be coterminous with the terms of employment and the right would stand extinguished with the termination of the employment giving rise to an obligation to handover the property back to the company .... if the property is held back, the retained possession would amount to wrongful withholding of the property of the company."
18. The Supreme Court followed the judgment in Baldev Krishna Sahi 's case (supra) in Abhilash Vinodkumar Jain's case (supra). At paragraph 10, the Supreme Court observed that the object of the provisions of Section 630 is to retrieve the property of the company and that even though the provisions are penal in nature, the object of the provisions is required to be given a purposive interpretation so as not to choke the beneficent provision. At paragraph 12, it observed :
"This Court has consistently taken the view and repeatedly emphasised that the provisions of Section 630 of the Act have to be given purposive and wider interpretation and not restrictive interpretation."
18.1 At paragraph 13, it observed :
"The logical deduction of the analysis of Section 630 of the Act in the light of the law laid down by the Supreme Court, is that the entitlement of the officer or employee to the allotted property of the company is contingent upon the right and capacity of the officer or the employee by virtue of his employment to continue in possession of the property belonging to the company, under authority of the company and the duration of such right coterminous with his/her employment."
18.2 It further held at para 14 :
"The capacity, right to possession and the duration of occupation are all features which i are integrally blended with the employment and the capacity and the corresponding rights are extinguished with the cessation of employment and an obligation arises to handover the allotted properly back to the company. Where the property of the company is held back whether by the employee, past employee or anyone claiming under them, the retained possession would amount to wrongful withholding of the property of the company, actionable under Section 630 of the Act."
18.3 It again observed :
"Once the right of the employee or the officer to retain the possession of the property, either on account of termination of services, retirement, resignation or death, gets extinguished, they (persons in occupation) are under an obligation to return the property back to the company and on their failure to do so, they render themselves liable to be dealt with under Section 630 of the Act for retrieval of the possession of the property.
18.4 At paragraph 15, the Supreme Court held:
"Even though Section 630 of the Act falls in Part XIII of the Companies Act and provides for penal consequences for wrongful withholding of the property of the company, the provisions strictly speaking, are not penal. in the sense as understood under the penal law. The provisions are quasi-criminal. They have been enacted with the main object of providing speedy relief to a company when its property is wrongfully obtained or wrongfully withheld by an employee."
18.5 At paragraph 16, it was held that :
"The "line" under Sub-section (1) of Section 630 is to be understood in the nature of "compensation" for wrongful withholding of the property of the company."
18.6 At paragraph 17, the observations of the Supreme Court read as follows :
"The object of the Companies Act, inter alia, to regulate the affairs of the companies including the control of the management and protection of the property of the company. The object of Section 630 of the Act has, thus, a direct nexus with the object of the Act."
18.7 At paragraph 18, it observed :
"Section 630 of the Act provides speedy relief to the company where its property is wrongfully obtained or wrongfully withheld by an "employee or an officer .... The failure to deliver property back to the employer on the termination, resignation, superannuation or death of an employee, would render the "holding" of that property wrongful and actionable under Section 630 of the Act."
18.8 At paragraph 18, it further observed :
"The Legislature, which is supposed to know and appreciate the needs of the people, by enacting Section 630 of the Act manifested that it was conscious of the position that today in the corporate sector private or public enterprise the employees are often provided residential accommodation by employer for the use and occupation of the concerned employee during the course of his employment. More often than not, it is a part of the service conditions of the employee that the employer shall provide him residential accommodation during the course of his employment. If an employee or apast employee or anyone claiming the right of occupancy under them were to continue to "hold" the property belonging to the company after the right to be in occupation has ceased for one reason or the other, it would not only create difficulties for the company, which shall not be able to allot that property to its other employees, but would also cause hardship for the employee awaiting allotment and defeat the intention of the legislature. The Courts are therefore obliged to place a broader, liberal and purposeful construction on the provisions of Section 630 of the Act in furtherance of the object and purpose of the legislation to construe it in a wider sense to effectuate the intendment of the provision.
18.9 It is very much significant to note the following observations of the Supreme Court at paragraph 18 :
"The Court, when, approached by the employer for taking action under Section 630 of the Act, can examine the basis on which the petition/ complaint is filed and if it is found that the company's right to retrieve its property is quite explicit and the stand of the employee, or any one claiming through him, to continue in possession is baseless it shall proceed to act under Section 630 of the Act and pass appropriate orders. Only an independent valid right not only to occupation but also to . possession of the property unconnected with the employment can defeat an action under Section 630 of the Act. In interpreting a beneficent provision, the Court must be for ever alive to the principle that is the duty of the Court to defend the law from clever evasion and defeat and prevent perpetration of fraud."
19. I now come to the decisions cited on behalf of the respondent No. 2 on the question of ratio decidendi.
19.1. In Amritsar Municipality v. Hajara Singh , has been held :
"Judicial property, dignity and decorum demand that being the highest tribunal in the country even obiler dictum of the Supreme Court should be accepted as binding. Declaration of law by that Court even if it be only by the way has to be respected. But all that does not mean that every statement' Contained in a judgment of that Court would be attracted by Article 141. Statements on matters other than law have no binding force."
19.2. In B.R. Sharma (supra), it has been held that a decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein.
19.3. In State of Orissa (supra), it is held :
"A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it."
19.4. In Dhanwanti Devi (supra), it has been observed :
"The only thing in a judge's decision binding a party in the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well settled theory of precedents, every decision contains three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct or perceptible facts ; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts ; and (iii) judgment based on the combined effect of the above ......It is the only principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason...."
20. On a careful analysis of the two Supreme Court judgments in the cases of Baldev Krishna Sahi (supra) and Abhilash Vinodkitmar Jain (supra), cited on behalf of the petitioner in the light of the tests laid down for ascertainment the ratio of a judgment in the above four decisions of the Supreme Court cited on behalf of the respondent No. 2, the principles and ratio which would, in essence, be discernible be summed up as :
20.1 The provisions of Section 630 are not penal in the sense as understood under the penal law and are quasi-criminal. The 'fine' under Subsection (1) of Section 630 is to be understood in the nature of 'compensation' for wrongful withholding of the property of a company. The beneficent provisions contained in the section have been purposely enacted by the Legislature with the object of providing a summary procedure for retrieving the property of a company. The whole object is the preservation of the property of a company and to provide speedy remedy to a company when its property is wrongfully withheld by its employee after the termination of his employment, ft is the duty of the Court to place a broad, liberal and purposeful construction on the provisions of Section 630 in furtherance of the object and purpose of the legislation which would suppress the mischief and advance the remedy. The entitlement of an officer to the property of a company is contingent on the right and capacity of the officer by virtue of his employment, which is transformed into the actual possession of the property and the duration of such right would be coterminous with the terms of employment and the right would stand extinguished with the termination of the employment giving rise to an obligation to handover the property back to the company. If the property is held back, the retained possession would amount to wrongful withholding of the property of the company. The failure to deliver the property on the part of the employee back to the company on the cessation of employement arising out of termination, resignation, superannuation or death would amount to wrongful withholding actinable under Section 630 in the absence of any independent capacity or status or any express agreement to the contrary entered into by and between him and the company to contunue in possession of the property. The Court, where approached by the employer for taking action under Section630, can examine the basis on which the petition/complaint is filed and if it is found that the company's right to retrieve its property is quite explicit and the stand of the employee, or any one claiming through him to continue in possession is baseless, it shall proceed to act under Section 630 and pass appropriate orders.
21. In the written objection that was filed on behalf of the respondent No. 1 before the Court below against the company's petition under Section 630(2), we find that the respondent No. 2 gave a general denial to all the allegations in the petition. In paragraph 2 of the petition, the company referred to the materail facts and the relevant annexures including the letters of resignation and request for extension of the time to retain the possession on the part of the respondent No. 2. In paragraph 12 of teh written objection, the respondent No. 2 stated that the statements made in para 2 of the petition are not admitted and the same are denied and disputed except what are matters of record. Now, what, according to the respondent No. 2, were matters of record is not clear. Moreover, there is no whisper within the four comers of the written objection so far as the averments in paragraph 2A of the petition are concerned.
22. The respondent No. 2 in his written objection did never specifically disown the letters what were alleged to have been written by him and referred to in the petition. The respondent No. 2 has also not come forward with any plea of independent right or capacity unconnected with his erstwhile status as an officer of the petitioner-company to continue in occupation and possession fo the flat concerned.
23. The averments made in the application under Section 482 of the Cr.PC and Article 227 of the Constitution filed before this Court are supported by affidavit, and it is pertinent ot note that no counter-affidavit had been filed on behalf of the respondent No. 2.
24. The matters on record would reveal that the respondent No. 2 wanted to be permitted by the petitioner-company to continue to possess the concerned flat at most till the end of December 1994 but since then, the fact remains that more than two years have already elapsed without the flat being delivered back to the company.
25. Reference may be made to the provisions enacted in Section 456 of the Cr.PC where the Court trying an offence, the Court of appeal, the Court of confirmation or revision has been given power to restore possession of a property to any person who has been dispossessed from that property by another person, only if that other person is convicted of an offence attended by criminal force or by criminal intimidation. Section 456 of the Cr.PC itself makes it clear that the order of restoration can be made only after the conviction and not before while Section 630 does not expressly make conviction a condition precedent ot the passing of an order for delivery of the property.
26. In Baldev Krishna Sahi's case (supra) also the officer of the company was being prosecuted as an accused and the outer limit fixed by the Apex Court for disposal of the criminal case pending before the magistrate was longer than that which was fixed for the officer accused to vacate the company's property. The pendency fo the criminal case did not deter the Apex Court to give direction for delivery of the property even before the trial was directed to be concluded. The only difference between Baldev Krishna Sahi's case (supra) and the present case is that here it is the company who has approached this Court under Section 482 of the Cr.PC and Article 227 of the Constitution for a direction to deliver the property while in Baldev Krishna Sahi's case (supra) it was the accused officer of the company who approached the Supreme Court in a special leave petition. In the circumstances, it would be in consonance with the Apex Court's decision in the Baldev Krishna Sahi's case (supra) to pass an order under Section 630(2) directing the respondent No. 2 to vacate the flat even before the magistrate formally disposes of the criminal case against the respondent No. 2.
27. Indeed, the company is right to retrieve the prpperty is quite explicit here particularly when the respondent No. 2 has not yet come forward with a definite stand to resist the company's claim and I really do not find any sufficient reason as to why I am not to rely on this decision of the Apex Court in Baldev Krishna Sahi 's case (supra) and direct the respondent No. 2 to deliver back the company's property.
28. Thus, taking an overall view of the matter revealed from the facts and circumstances of this case and giving the matters my anxious consideration in the light of the principles and ratio of Supreme Court decision in the cases of Baldev Krishna Sahi (supra) and Abhilash Vinodkumar Jain (supra), I am inclined to hold that this is a fit and proper case for invoking the inherent powers of this Court under Section 482 of the Cr.PC to direct the respondent No. 2 to vacate the flat concerned in favour of the petitioner-company under Section 630. The respondent No. 2 is hereby given one month's time to vacate the flat failing which the petitioner will be at liberty to take such proceedings as the law provides. The learned Chief Judicial Magistrate, Alipore, is also hereby directed to proceed with the trial of the criminal case and dispose it of as expeditiously as possible and, in any event, not later than four months from this date. Let this order be communicated to the learned magistrate forthwith.
29. The application under Section 482 read with Article 227 of the Constitution is thus disposed of.