1. This is a revision by the accused against the order of the Additional Sessions Judge, Jammu, dated 14-2-1972 whereby he dismissed the revision petition and affirmed the order of the Chief Judicial Magistrate, Jammu. issuing a warrant under Sec­tion 96 of the Code of Criminal Procedure.

2. The facts which are relevant for the disposal of this peti­tion are very short and are set out here under: -

Sat Paul, respondent, filed a complaint against the petitioner with the allegations that Ram Rakha petitioner, alongwith Shrimati Ram Piari, was the owner of Bus No. JKN 5635. As the accused petitioner and his partner Ram Piari wanted to dis­pose of the said vehicle so the petitioner persuaded the com­plainant to purchase the said bus and enter into a transaction of sale. It was alleged further that the petitioner had handed over the possession of the said bus to the complainant respondent on 18-8-1971 even before an advance of Rs. 26.000/- had been made to the accused-petitioner on 13-11-1971. The allegation with regard to the commission of an offence as made by the respondent in the complaint was that the bus had been parked in the New Adda on 26-11-1971 from where the accused committed the theft and took away the bus into his possession. The learned Magistrate after recording the statement of the complainant and perusing the documents filed with the complaint issued a bail­able warrant against the accused petitioner on 2-12-1971.

3. On 3-12-1971 Sat Paul, respondent, moved the trial Magis­trate by means of a petition wherein he alleged that the service of the petitioner had been affected by means of the warrant issued by the court and after the same the petitioner accused is trying to take away the bus in dispute somewhere outside the State and thereby wants to destroy the prosecution evidence. The respondent prayed that the said bus may be confiscated. The trial Magistrate after hearing the applicant ordered a sea­rch warrant under Section 96 of the Code of Criminal Procedure to be issued and sent the same to the S. H. O. Police Station, Saddar, for compliance.

4. It appears that after this order had been passed the accu­sed petitioner that very day moved the learned Magistrate by means of a petition that the warrant under Section 96 may be issued. He submitted therein that the dispute between the parties was of civil nature and the petitioner had ample evi­dence in his possession to show that he is the owner of the vehi­cle. He further stated that he could produce the vehicle before the court whenever required. From another detailed order passed on that very day it appears that the court heard this peti­tion in presence of the parties and came to the conclusion that as warrant under section 96 had already been issued so the learned Magistrate felt that he had no jurisdiction to revise his previous order. He also said that after the seizure he will hear the par­ties again in detail and pass orders regarding the disposal of the property and at that stage he may consider the advisability of keeping the vehicle with the petitioner.

5. It is against this second detailed order of 3-12-1971 that the petitioner filed a revision before the Additional Sessions Judge which as stated earlier was dismissed by him giving rise to the present revision petition.

6. This petition came up for hearing before the Honble Chief Justice on 30-3-1972 when His Lordship was pleased the refer this case to a larger bench as according to His Lordship the points of law involved in this case as to the scope and effect of section 96 of the Criminal Procedure Code (hereinafter called the Code) moreso after section 94 of the Code having been struck down by the Supreme Court was to be considered. Hence this revision came up before us.

7. Mr. Thakur. appearing for the petitioner, vehemently argued that section 94 has been struck down as ultra vires to the Constitution of India so far as the accused persons are con­cerned. He contended that the accused donot be ord

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