ORAL ORDER

1. This petition under Article 227 of the Constitution of India is filed to quash and set aside order dated 03.08.2019 passed by learned Additional Sessions Judge, Bhuj, District Kutch in Criminal Revision Application No.114 of 2018.

2. Brief facts of the case are as under :-

2.1. That the respondent No.3 purchased a tractor bearing registration No.GJ-12-AN-8472 with the financial assistance of the petitioner bank by executing hypothecation agreement. There was an outstanding amount of Rs.2,77,523/- and therefore, on 21.04.2015, notice was issued, however the amount was not paid and therefore, invoking the Arbitration Clause, the arbitration proceedings were initiated, however the respondent No.3 has not remained present and the award was passed. On 19.08.2016, relying upon the clause in the agreement, more particularly the Clause 17.2, the vehicle was repossessed. The respondent No.3 was informed on 22.08.2016. On 29.10.2016, he was informed about auction. On 22.02.2017, the respondent No.3 filed a complaint before the Ld. Judicial Magistrate First Class, Nalia for the offences punishable under sections 381, 403, 414, 418 and 114 of the Indian Penal Code, 1860 being Inquiry Case No.9/2017 and the same was also sent for investigation under section 156(3). On 18.09.2017, the Assistant Police Superintendent, Nakhatrana has submitted a report by filing "C" Summary. Against that, the respondent No.3 had filed protest petition which was overruled and the Ld. Principal Judicial Magistrate First Class, Nalia vide the order dated 10.09.2018 has accepted the report and dismissed the complaint under section 203 of the Code of Criminal Procedure. Against that, the Revision Application was filed and the same was allowed and hence, present petition is filed.

3. Learned advocate Mr.D.P.Kinnariwala along with learned advocate Mr.Balar for the petitioner submitted that learned Sessions Court has exceeded its jurisdiction under section 397 read with section 401 of Cr.P.C. He would submit that jurisdiction of learned Sessions Court under section 397 read with section 401 of Cr.P.C. is limited to call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding. It is submitted that perusal of questioned order indicates that learned Sessions Court on its own gave finding that HDFC bank has forcefully taken possession of tractor from first informant and action of the bank therefore, is against principle of rule of law. It is submitted that since first informant defaulted in payment of loan transaction, in view of arbitration clause in hypothecation agreement, HDFC bank has taken possession of the tractor and permitted to recover loan amount from first informant, yet first informant has not paid loan amount which gave right to HDFC bank to recover possession of tractor. He relied on the judgment in the case of Charanjit Singh Chadha v/s. Sudhir Mehra [2001 (7) SCC 417] as well as in the case of Magma Fincorp Ltd. v/s. Rajesh Kumar Tiwari [2020 (10) SCC 399] and submitted that HDFC bank has not committed any error in taking possession of the tractor which was hypothecated to the petitioner. It is submitted that private complaint was filed initially for the offence under section 381, 403, 414, 418 and 114 of IPC. However, taking possession of tractor which has been hypotecated cannot be considered as theft defined in section 378. He would submit that essential ingredient of section 381 is not satisfied nor essential ingredient of section 403. It is submitted that learned Sessions Court has exceeded its jurisdiction and order of issuance of process itself is bad in law and therefore, it is submitted to quash the impugned order by allowing the present petition.

4. Respondent no.2 - complainant was served, but he did not remain present to contest the petition.

5. Learned APP s