Back
ORISSA HIGH COURT
C.R. DASH, J.
Smt. Jayashri Singh - Petitioner
Versus
State of Orissa and four others - Opp. Parties
CRLMC No. 1302 of 2010
Decided On : 14th November, 2012
Text1
It is however found from the provision on its cursory reading that Subsection (1) of Section 452, Cr.P.C. enables the Court to deliver the property to any person, who in the judgment of the Court is entitled to possess it. Such a person need not be the owner but is one who came into possession of the property in a lawful manner. According to me, the burden however of establishing the legality of possession should be on the person claiming possession and the other party opposing such a claim should not be asked to prove the contrary. In other words, the person, who claims to fake possession of the property must satisfy the Court about his entitlement for which purpose he shall have to establish that he was or is in lawful or rightful possession of the property in question. The consideration before the Court in the event of any controversy is the entitlement of a person to possess and, of course, ends of justice. A non-party before the Criminal Court, who might have come to lawful possession of the property, cannot be debarred from moving the Criminal Court under relevant provisions of Chapter 34 of the Cr.P.C. Both Sub-sections (1) confers wide discretion to the Court. The Court should hold an enquiry to decide the question of entitlement to possess the object. Enquiry is to direct the property to be given to that person to whom it appears to belong or to allow it to continue in the possession of the person in whose possession it was found or to make some other order which the Court deems fit having regard to the facts and circumstances of the case. The Criminal Court, as a matter of practice, cannot shrug its shoulders and direct the parties to approach the Civil Court, unless there is serious dispute on the question of title over the property. And the Criminal Court should use its legal acumen to recognize a fake dispute to dismiss the same in order to aid the one who came into possession of the property in a lawful manner. (Paras - 11 to 13)
2. CRIMINAL PROCEDURE CODE, 1973 - Secs. 451, 452, 457 - Where the property has been seized by the Police but not produced before the Court, the power to dispose it of is covered under Sec. 457 - Where the property has been seized and/or otherwise produced before the Court, the manner to dispose of such property is covered by Sec. 451 - If the question of disposal arises after the enquiry or trial in a criminal Court is concluded, the disposal of property involved in the case is governed by Sec. 452. (Para-14)
JUDGMENT
C. R. DASH, J. - This petition under Section 482, Cr.P.C. arises out of a revisional order passed by learned Sessions Judge, Khurda at Bhubaneswar in Criminal Revision No. 12 of 2012 confirming the order passed by learned S.D.J.M., Bhubaneswar on a petition filed under Section 452, Cr.P.C concerning a house.
2. At the outset, I feel persuaded to say here that in view of Section 454 Cr.P.C. learned Sessions Judge should not have entertained this revision, as an appeal lies against an order passed under Section 452, Cr.P.C.
3. The property involved in the case is a house bearing No.HIG-1/55, B.D.A. Colony, Kapila Prasad, Bhubaneswar. One Sri Sila Siv Narayan was the original owner of the aforesaid house. He had purchased the house in question on allotment by the Bhubaneswar Development Authority ('B.D.A.' for short).While he was in possession of the house, he executed a-general power of attorney in favour of Sunil Kumar Mohanty (present opposite party No.4) authorizing him to deal with the property. Sunil Kumar Mohanty (present opposite party No.4) on behalf of Sri Sila Siv Narayan, mortgaged the house with the Union Bank of India, Janapath Branch, Bhubaneswar to secure loan of Rs. 20,00,000 (Rupees twenty lakhs). Manas Ranjan Rayjagdev (present opposite party No.5) was a tenant in respect of the aforesaid house being inducted on behalf of Sri Sila Siv Narayan. Said Manas Ranjan Rayjagdev defaulted in payment of rent. He also sublet one part of the house and did not pay the rent even after being approached. Some friends and henchmen of aforesaid Sunil Kumar Mohanty including Manoj @ Anil Kumar Mohanty (present opposite party No, 2), who happens to be the brother of Sunil Kumar Mohanty (opposite party No.4), forcibly entered into the house in absence of Manas Ranjan Rayjagdev (present opp. party No, 5) and removed the household articles to take the house in their possession.
4. Aforesaid Manas Ranjan Rayjagdev (present opposite party No.5) lodged FIR in the Airfield Police Station alleging offence under Sections 448/294/506/380/34, IPC against Manoj @ Anil Kumar Mohanty (present opposite party No.2) and another. On the basis of the report, G.R.Case No.1050 of 2002 was initiated against the culprits in the Court of S.D.J.M" Bhubaneswar. The Investigating Officer filed the petition dated 13.04.2002 and moved the Court of learned SDJM, Bhubaneswar for appointment of receiver in respect of the aforesaid house. Said petition was rejected by learned SDJM directing the Investigating Officer to put a lock in the house and deposit the key of the lock in a sealed cover in Court and keep another key with himself. Such an order was passed on 17.04.2002. Subsequently Manas Ranjan Rayjagdev (Opposite party No.5) and Sunil Kumar Mohanty (present opposite party No.4) filed two petitions under Section 457, Cr.P.C. claiming possession, of the house and prayed to deliver the house in their possession. Learned SDJM, Bhubaneswar vide order dated 10.05.2002 rejected both, the petitions and left the matter open for the parties to agitate the issue before the competent Civil Court. The matter was carried out to this Court in Criminal Misc. Case No. 859 of 2002. This Court vide order dated 02.04.2003 dismissed the Criminal Misc. Case and confirmed the orders of lower Courts.
5. While matter stood thus, the Union Bank of India, Janapath Branch, Bhubaneswar in exercise of power under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("SARFAESI Act, 2002" for short) took steps an auctioned the house in favour of one Pranati Samal, as the loanee-(Sri Sila Siv Narayan) could not repay the loan amount and his account became Non-Performing Asset ('NPA'for short). The Registered Sale' Deed in favour of aforesaid Pranati Samal'was executed on 26.08.2008. Later on 08.09.2009, vide a Registered Sale Deed, Pranati Samal sold the house in question in favour of Smt. Jayashri Singh (the present petitioner). I
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
