# Court in Smt. Vijay Rani v. Regional

- **Citation:** (2009) 3 ILRA 940
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009
- **Case number:** Second Appeal No.1727 of 1976
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-smt-vijay-rani-v-regional-39331
- **Pages:** 4

## Headnote

Code of Civil Procedure- Section 100-
Second appeal- suit for return of gun
along with Cost- DBBL gun auctioned
after ceasure by order passed by session
judge
under
section
458
Cr.P.C.-
remained
unchallenged
can
not
be
questioned in civil suit nor the civil court
has jurisdiction judgment and so for it
relates to returned is decree concern-set
a side by but direction for payment of
value of gun as well as cost maintained.

Held: Para 9

From the fact as they exist on record it is
apparently clear that after the gun was
seized and orders for sale of the same
were issued. Such orders for sale of the
property
seized
during
criminal
proceedings are referable to Section 458
Cr. P.C. Section 458 (2) provides for an
Appeal
against
an
order
of
the
Magistrate directing sale of the property.
It is apparent from the records of this
Court on 25.08.1971 when proceedings
under Section 458 Cr.P.C. For sale of the
gun
had
already
taken
place
on
22.06.1970. It is therefore, obligatory
upon the plaintiff company to have got
the order of sale passed under Section
458 Cr.P.C. Set aside and then only any
direction for the return of the gun could
be given effect to. The plaintiff for
reasons best known to it has not brought
to the knowledge of the Court in his
Criminal Misc. Application resulting in
the order dated 25.08.1971, the fact um
of the order for sale passed under
Section 458 Cr. P.C. And the actual sale
which had taken place on 22.06.1970 i.e.
much prior to the date of the order of the
High Court dated 25.08.1971 setting
aside the forfeiture.
3 All] Rahul Sondhi V. Amritsar Sugar Mills Co. and others
941

## Text

940 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
can be claimed by a person based on an
interim order. This aspect has been
considered by a Division Bench of this
Court in Smt. Vijay Rani Vs. Regional
Inspectress of Girls Schools, Region-I,
Meerut & others 2007 (2) ESC 987,
wherein this Court having considered
several authorities of the Apex Court and
this Court, has observed as under :

"If a person has enjoyed certain
benefits under the interim order, he/she
would not be allowed to claim any further
benefit due to change in law pursuant to
enjoyment of certain benefit under an
interim order of the Court. A benefit
under the interim order is tentative and
subject to final decision in the matter and
cannot go beyond the final decision."

20. In view of the above discussion
and considering the exposition of law as
well as the statutory provisions applicable
to this case, I do not find any illegality in
the order impugned in this writ petition.
The writ petition is devoid of merit.
Dismissed.

21. Interim order, if any, stands
vacated.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10 2009

BEFORE
THE HON'BLE ARUN TANDON, J.

Second Appeal No.1727 of 1976

Rahul Sondhi

...Applicant
Versus
Amritsar Sugar Mills Co.Ltd. and others

 ...Opposite parties

Counsel for the Appellant:
Sri N.C. Rajvanshi
Sri P.C. Shukla

Counsel for the Opposite Parties:
Sri H.S. Nigam

Code of Civil Procedure- Section 100-
Second appeal- suit for return of gun
along with Cost- DBBL gun auctioned
after ceasure by order passed by session
judge
under
section
458
Cr.P.C.-
remained
unchallenged
can
not
be
questioned in civil suit nor the civil court
has jurisdiction judgment and so for it
relates to returned is decree concern-set
a side by but direction for payment of
value of gun as well as cost maintained.

Held: Para 9

From the fact as they exist on record it is
apparently clear that after the gun was
seized and orders for sale of the same
were issued. Such orders for sale of the
property
seized
during
criminal
proceedings are referable to Section 458
Cr. P.C. Section 458 (2) provides for an
Appeal
against
an
order
of
the
Magistrate directing sale of the property.
It is apparent from the records of this
Court on 25.08.1971 when proceedings
under Section 458 Cr.P.C. For sale of the
gun
had
already
taken
place
on
22.06.1970. It is therefore, obligatory
upon the plaintiff company to have got
the order of sale passed under Section
458 Cr.P.C. Set aside and then only any
direction for the return of the gun could
be given effect to. The plaintiff for
reasons best known to it has not brought
to the knowledge of the Court in his
Criminal Misc. Application resulting in
the order dated 25.08.1971, the fact um
of the order for sale passed under
Section 458 Cr. P.C. And the actual sale
which had taken place on 22.06.1970 i.e.
much prior to the date of the order of the
High Court dated 25.08.1971 setting
aside the forfeiture.
3 All] Rahul Sondhi V. Amritsar Sugar Mills Co. and others
941
(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Shri P.C.Shukla, Advocate
on behalf of the appellant. Nobody is
present on behalf of the defendant even in
the revised reading of the cause list. This
second appeal is of the year 1976. Facts in
short giving rise to the present second
appeal are as follows :--

2. A double barrel gun bearing no.
213347 is stated to have been stolen from
the guard of M/s. Amritsar Sugar Mills
Company on 11.02.1966 by one accused
Ghissu. The proceedings resulted in
Sessions Trial No. 95 of 1967. The
accused was convicted of an offence
under Section 399, 402 IPC by the
Sessions Judge. His conviction was
however set aside by the learned Sessions
judge, Muzzaffarnagar. The order for
forfeiture of the gun was upheld. The
Company made an application for return
of the gun, not being successful filed
Criminal Misc. Case No. 1327 of 1971
before the Hon'ble High Court. The High
Court passed an order on 25.08.1971
which reads as follows :

"There
appears
no
controversy
about the facts that the gun belongs to the
applicant. The gun went out of their
possession when it was in the custody of
their Chowkidar and for reason beyond
his control. The circumstances of the case
warrant that the gun be restored to the
applicant who certainly had no (sic) in
the commission of the offence under
Sections 399/402 IPC.
It is therefore, directed that the
DBBL Gun No. 213347 which was
directed to be forfeited by the Assistant
Sessions Judge in S.T. No. 95 of 1967 and
which order was confirmed in Appeal by
the Sessions Judge, shall be returned to
the applicant. The order of forfeiture
recorded by the Trial Court and Court of
Appeal is set-aside."

3. While the proceedings were
pending, it appears that the gun was put to
auction on 05.01.1970 under orders of the
Magistrate concerned. One Shah Alam
Zaidi, defendant/respondent no. 5 in the
present Appeal is stated to have purchased
the said gun in the auction held for a sum
of
Rs.
240/-.
Shah
Alam
Zaidi
subsequently sold the gun in favour of the
present appeallnt namely Rahul Sondhi.

4. The Company filed Original Suit
No. 585 of 1972 with the prayer that the
possession of the gun be restored in
favour of the plaintiff after obtaining
possession of the same from defendant
no. 5 i.e. the Appellant, in the alternative
it was prayed that a sum of Rs.3000/- be
paid towards cost of the gun and a further
sum of Rs. 1500/- be awarded as
damages. The suit was contested by the
auction purchaser as well as by the
present appellant. It was stated that the
order for auction of the property in
question has not been subjected to any
challenge and, therefore, the relief for
return of the gun could not be granted.

5. The Trial Court by means of the
judgment and order dated 24.01.1976
decreed the suit with cost. The defendants
were directed to hand over the gun to the
plaintiff within the time specified and in
case of default the plaintiff was held
entitled to a sum of Rs. 3000/- as cost of
the gun. However the claim for damages
was rejected.

6. Not being satisfied with the
judgment and order of the Trial Court the
Appellant filed Civil Appeal No. 48 of
942 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
1976. The appeal has been partly allowed
vide judgment and order of the Additional
Civil
Judge,
Muzaffarnagar
dated
22.07.1976. It is against the part of the
judgment whereby the order directing the
appellant to return the gun has been
maintained the present second appeal has
been filed.

7. On behalf of the appellant it has
been contended that the judgment and
order of the First Appellate Court is self
contradictory. Counsel for the appellant
has vehemently contended that since the
auction of the seized property has been
effected in accordance with Section 458
Cr.P.C. under orders of the District
Magistrate and such order has not been
set aside by any competent Court of law,
the same has become final between the
parties and no Civil Court can set aside
the auction in terms of Section 458
Cr.P.C. The aforesaid aspect of the matter
has completely been ignored by the
Courts below. Any auction proceedings
under the provisions of Cr.P.C., cannot be
interfered in a Civil Suit. Counsel for the
appellant contended that merely because
the Hon'ble High Court on 25.08.1971
had set aside the order of forfeiture of the
gun on miscellaneous application filed by
the plaintiff company, it will not mean
that the auction proceedings taken under
Section 458 Cr.P.C. Automatically stand
nullified.

8. I have heard learned counsel for
the parties and have gone through the
records of the present second appeal.

9. From the facts as they exist on
record it is apparently clear that after the
gun was seized and orders for sale of the
same were issued. Such orders for sale of
the property seized during criminal
proceedings are referable to Section 458
Cr.P.C. Section 458 (2) provides for an
Appeal against an order of the Magistrate
directing sale of the property. It is
apparent from the records of this appeal
that the order declaring the seizure to be
illegal was made by this Court on 25.08.
1971 when proceedings under Section
458 Cr.P.C. for sale of the gun had
already taken place on 22.06.1970. It is
therefore, obligatory upon the plaintiff
company to have got the order of sale
passed under Section 458 Cr.P.C. set
aside and then only any direction for the
return of the gun could be given effect to.
The plaintiff for reasons best known to it
has not brought to the knowledge of the
Court in his Criminal Misc. Application
resulting in the order dated 25.08.1971,
the factum of the order for sale passed
under Section 458 Cr.P.C. and the actual
sale which had taken place on 22.06.1970
i.e. much prior to the date of the order of
the High Court dated 25.08.1971 setting
aside the forfeiture.

10. The auction so effected cannot
be re-opened or set aside on a suit filed
for return of the gun filed by the plaintiff.
In the opinion of the Court unless the
auction proceedings under Section 458
are set aside, no Civil Court has
jurisdiction to direct return of the property
sold
under
Section
458
Cr.P.C.
Consequently the decree to the extend it
directs return of the auctioned property
cannot be upheld. Accordingly the decree
is hereby set aside. However remaining
part of the decree for payment of cost of
the gun by defendant no. 4 is maintained.

11. The appeal stands allowed
accordingly.
---------
3 All] Juned Pahalwan V. State of U.P. and another
943
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.10.2009

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Revision No. 3550 of 2009

Juned Pahalwan

...Applicant

Versus
State of U.P. & another ...Opposite Parties

Counsel for the Applicant:
Sri V.P. Srivastava
Sri Lav Srivastava
Sri Vijay Singh Senger

Counsel for the Opposite Parties:
A.G.A.

Criminal
Revision-Summoning
of
applicant-under Section 319 Cr. P.C.-
offence under Section 302/394/506 IPCon ground unless all the witnesses
crass-examined-mere on possibility of
involvement-summoning order can not
be passed-alternatively till the decision
of larger Bench of Apex Court in Hardeep
Singh case order be kept in abeyanceheld-misconceived-consideration
of
possibility of conviction not required
under law.

Held: Para 9 & 11

In my view, the later view is to be
preferred to the view taken in some
decisions
which
have
insisted
on
necessity
for
cross
examining
the
witnesses is for reaching a finding about
the probability of conviction before
summoning an accused.

In view of my preference to the view
taken in Hardeep Singh's case and
because even in the said decision the
proceedings against Vijay Preet Singh
had not been stayed until the larger
Bench of the Apex Court considered the
matter, I see no reason for issuing notice
or keeping the matter pending till the
larger Bench decides the issue in the
Apex Court.
Case law discussed:
1983 (1) SCC 1, 2000 (2) JIC 5 (SC), 2000(3)
SCC 262, 2005 (1) JIC 107 (SC), , 2007 (58)
ACC 254, 2009 (1) JIC 362 (SC), SCC 248,
1991 (9) LCD 149.

(Delivered by Hon'ble Amar Saran, J.)

1. Heard Shri V.P. Srivastava,
learned senior counsel for the revisionist
and
learned
Additional
Government
Advocate.

2. This criminal revision has been
filed challenging an order dated 13.8.2009
passed by the learned Additional Sessions
Judge/Special Judge (DAA), Kanpur
Dehat
in
SST
No.
200
of
2008
summoning the revisionist in a case under
sections 302/394/504/506 IPC, police
station Bhognipur, Kanpur Dehat in
exercise of powers under section 319 of
the Code of Criminal Procedure.

3. It was mentioned in the
application for summoning the revisionist
that on 1.5.2008 at about 9.20 P.M., the
revisionist Juned Pahalwan, Zubair Khan
alias Majhlay and Hasnain alias Motey
and Ghulam Jilani committed the murder
of the deceased Aejaz Khan, the brother
of the informant Chand Babu, who lodged
a report of the incident at 11.10 PM. The
revisionist was shown armed with a
double barrel gun with which he fired on
the deceased and the post-mortem report
confirmed the said injury as there were
six gun shot injuries on the deceased and
67 pellets were retrieved from the body of
the deceased. These pellets were said to
be forced by the DBBL gun used by the
revisionist.