This criminal revision petition is directed against an order passed by the Magistrate 1st Class, Ferozewala on 29-1-1978 refusing to alter a superdari order ,in respect of a tractor earlier passed.
The tractor was recovered from the petitioner and had been by this order handed over to the respondent Nazar Hussain. That order came up before me in the Constitu--tional jurisdiction of this Court (W. P. No. 406/ 77) and it was held to be an order passed with jurisdiction and therefore immune from challenge under the Constitutional jurisdiction. The petitioner thereafter moved a petition for obtaining the tractor and the grounds urged were all such as sprung up subsequently by the alleged cancellation of the F. I. R. On the basis of which the superdari order of the tractor had been passed. Instead of determining the factual allegation of the cancellation of the case the learned Magistrate disposed of the application with the following observation : "I have very patiently heard arguments of the learned counsel of the parties and have carefully perused the record relating to this application. Superdari matter is already finally disposed of by his Lordship `Mr. Justice S. A. Rahman's order dated 12-9-1977. In the light of his Lordship's order no move further adjudication is required on this point of superdari of tractor, so far -as the ownership of the tractor is concerned it can only be decided by the competent civil Court whereas suit concerning the ownership of tractor is already pending in civil Court and respondent have a status quo order in his favour. So far as the fresh ground for reconsideration of previous Superdari order is concerned the respondent has filed complaint under section 379, P. P. C. Against the petitioner and others in respect of theft about the same tractor and the complaint is still pending in the Court abut the theft of the same tractor.---
2. There is apparently a refusal to exercise jurisdiction possessed by the Magistrate. The first question to be determined was whether the criminal case in which the superdari order had been passed stood cancelled or not? If it had been cancelled the next question was, had the Magistrate's jurisdiction to continue an interim order even after the cancellation of F. I. R. If it related to another criminal matter, complaint or otherwise whether or not a fresh order was necessary. Thirdly, whether the civil Court's order could preclude the learned Magistrate from restoring the custody.
This. Would be independent of the question whether the earlier order had not come to an end of its own if the F. I. R. Stood cancelled'a There has also been a mistake in holding that the order of superdari had attained finality by my order dated 12-9-1977 in a Constitutional petition The order of custody is interim. It does not attain finality. It is relatable to a pending case and to a given situation which may change from time to time.
3. The petition is, therefore, allowed and the order is set aside. The petition shall be deemed to be pending before the Magistrate awaiting disposal according to law.