1992 Supreme(MP) 165

D.M. Dbannadbikari, J.
Vijay Rao v .State of M.P
Cr.Revn.No.608 of 1991 (J); Decided on 17.3.1992.

Headnote:(1) Criminal P.C., 1973 -- Ss. 451 and 457 -- provisions under-- apply to different stages -- application previously rejected before filing challans -- may be entertained after presentation of Challan.

        (2) Criminal P.C., 1973 -- S.451 -- tenant in possession -- interim custody of tenanted premises cannot be given to landlord simply because he has served

       A quit notice

        (3) Criminal P.C., 1973 -- S.397 -- revision under -- Session Court and High Court have concurrent jurisdiction -- option rests with the applicant to choose the forum.

       ¼1½ naM izfdz;k lafgrk] 1973 && /kkjk 451 rFkk 457 && ds v/khu mica/k && fofHkUu izdzeksa dks ykxw gksrs gSa && vkosnu pkyku Qkby djus ds iwoZ [kkfjt fd;k x;k && pkyku izLrqr gksus ds i‘pkr~ xzg.k fd;k tk ldrk gSA

        ¼2½ naM izfdz;k lafgrk] 1973 && /kkjk 451 && vfHk/kkjh dCts esa && ifjlj dk varfje dCtk Hkw&Lokeh dks dsoy bl dkj.k ugha fn;k tk ldrk fd mlus [kkyh djkus dh lwpuk rkehy djk nh gSA

        ¼3½ naM izfdz;k lafgrk] 1973 && /kkjk 397 && ds v/khu iqujh{k.k && ls‘ku U;k;ky; vkSj mPp U;k;ky; dks leorhZ vf/kdkfjrk gS && U;k;ky; ds p;u dk fodYi vkosnd dks gSA

       Few facts necessary to disposal of this revision are that the present applicant Vijay Rao Ravtate, claims to be the manager of Santosh Video House at Khairagarh, which is run in an accommodation owned by non-applicant No.2 Nayotaram Chandwani and admittedly was let out for Video business to Prafulla Bai, mother of the present applicant.

       The police has registered offence against the N.A.2 under section 451, 448 and 34 of the LP.C. on the allegation that the non-applicant No.2 (hereinafter referred to as the land lord) with the help of his sons committed illegal trespass in the Video parlour and threw away the articles of the parlour and tried to take forcible possession of the parlour. During the course of investigation of the offence, the applicant approached the Judicial Magistrate First Class Khairagarh seeking interim possession and custody of the house and the articles of the parlour. The J.M.F. Class by order passed on 9.5.1991 directed the release in interim custody of the articles of the parlour to the applicant, but directed the interim possession and custody of the accommodation to be deLi"Vered to the non-applicant landlord. Against the above order passed by the Judicial Magistrate First Class on 9.5.1991, the applicant filed a revision to the Court of Additional Sessions Judge, Khairagarh, who by order dated 1.8.1991 dismissed the revision and confirmed the order of the Judicial Magistrate First Class, directing interim custody and release of the properties in the manner stated above.

       After filing of the challan and during pendency of the trial before the J .M. F. e. Khairagarh the present applicant filed second application purported to be under section 451 of the Code seeking interim possession of the accommodation where the video parlour was being run by the applicant as manager. The J.M.F.C. Khairagarh by the impugned order 14.12.1991 rejected the application of the applicant giving rise to the present revision.

       Learned counsel appearing for the applicant assails the impugned order of the learned

       J.M.F.C. on several grounds The first submission is that the learned Magistrate has misconstrued the provisions of section 451 and 457 of the Code which come into operation at different stages of a Criminal case and wrongly rejected the second application of the applicant for interim custody on the ground that earlier application for interim custody pending investigation, had already been rejected by the learned Magistrate. The argument is that the principle of resjudicata could not have been applied by the learned Magistrate in rejecting the application.

       Learned counsel for the N.A.2 supported the order of the learned Magistrate, stating that the application for interim custody jointly made under the provisions of section 451 and 457 of the Code, of the accommodation in dispute and already been rejected by the learned Magistrate and confirmed by the revisional Court.

       Therefore, the same matter could not have been reagitated by the second application.

       Held: In my considered opinion, the present application of the applicant could not have been rejected on the ground that the similar application for interim custody had already been rejected. It is to be noticed that the provisions of section 457 of the Code are applicable in a case where there is seizure of property by the police and reported to the Magistrate. Thisis the stage before commencement of the trial before the Magistrate At this stage, it may be that the Judicial Magistrate thought it fit to give interim custody of the accommodation to the landlord. The provisions of section 451 of the Code are applicable to a case where the magistrate is approached for interim custody and possession of the property pending trial before him. This is the second stage at which the Magistrate is empowered to decide the question of interim custody of the property which is the subject matter of an offence. Merely because the Magistrate had, earlier, in proceedings under section 457 of the Code, directed the interim custody of the property to be given to the N.A.2, does not debar him from reconsidering the matter after the challan is filed and the trial commences, on an application u/s.

       451 of the Code

       The next submission of the learned counsel for the applicant is that the learned Magistrate was clearly in error in holding that since the mother of the applicant was the tenant and her tenancy had been terminated by a quit notice the landlord had the right of immediate possession. In my considered opinion, this second submission on behalf of the applicant has great force. It is not seriously in dispute that the mother of the applicant was the tenant of the accommodation in which the Video parlour was being run. It may be that the possession of the applicant as her son was only permissive, but he was in actual possession of the accommodation on the date of the incident. The mere quit notice by the landlord to the tenant does not create a right of immediate possession in favour of the landlord. The right to possess accommodation would arise only on filing of a suit for eviction and on grant of a decree thereon because admittedly the provision of M.P. Accommodation Control Act, 1961 are applicable and regulate the relationship between the parties. The landlord, therefore, could not have been held to be entitled to immediate possession of the accommodation when the actual possession, on the date of incident, was with the applicant as the Manager of the video house through his mother as the tenant. The learned Magistrate, therefore, has committed a serious error of law.

       The last submission is in the nature of a preliminary objection on behalf of the N.A.2 that the impugned order of the Judicial Magistrate was revisable by the Additional Sessions Judge and no direct revision should have been filed in the High Court. This contention

       has no force. Provisions of section 397 of the Code confer concurrent revisional jurisdiction on the High Court and the Sessions Judge and the option is with the party aggrieved to approach anyone of the two Courts.

       In view of the aforesaid discussion, this revision succeeds and is hereby allowed. The impugned order dated 14.12.1991 passed by the Judicial Magistrate First Class, Khairagarh is set aside. It is directed that the possession of the accommodation in question be handed over to the applicant during pendency of the trial before the learned Magistrate.