Orissa High Court
Mahommed Zariff And Anr. vs Sk. Zinaullah on 4 August, 1987
Equivalent citations: 1988CRILJ55
Author: R.C. Patnaik
Bench: R.C. Patnaik
ORDER R.C. Patnaik, J.
1. In this revision under Section 482 of the Cri. P.C. read with Section 401 thereof, the petitioners seek the quashing of an order passed by the Sessions Judge, Puri, directing release of a truck to the opposite party, reversing the direction of the Magistrate releasing the truck in favour of petitioner No. 1.
2. Truck bearing registration number OSP. 3707 belonged to the opposite party. He purchased the same after obtaining financial assistance from the State Bank of India, City Branch, Cuttack. He entered into an agreement with the petitioners on 15-1-1981 for sale of the truck. Consideration for the sale was fixed at Rs. 1,70,000/-. The dues of the State Bank of India were to be included in the amount of consideration fixed. The arrangement was that after payment of the dues of the Bank, the opposite party would receive Rs. 82,000/-; out of which he was paid Rs. 20,000/- in cash that day and possession of the vehicle in running condition was delivered to the petitioners. It was stipulated that on and from the date of agreement the petitioners would be the owners of the vehicle and exercise their right as such owners. Pursuant to the agreement, the petitioners paid Rs. 5,000/- in February, 1981, On 17-7-1981 an F.I.R. was lodged at the Saheednagar Police Station in the District of Puri by the opposite party alleging commission of criminal breach of trust punishable under Section 408 of the Indian Penal Code. It was alleged that though under the agreement the petitioners were to pay Rs. 62,000/- by 31-3-1981, they paid a sum of Rs. 5,000/- only. Despite requests of the opposite party, they did not clear the balance dues. Hence, they had violated the contract, but did not return the vehicle. While investigation into the allegations made in the F.I.R. was in progress, a motion was made to the learned S.D.J.M. to pass an interim order to release the vehicle in favour of the petitioners upon their executing a bond and giving an undertaking to produce the vehicle whenever called upon. The opposite party carried Criminal Revision No. 135 of 1981. The learned Sessions Judge set aside the interim order passed by the learned Magistrate and directed release of the vehicle in favour of the opposite party. The matter came to this Court in Criminal Revision No. 126 of 1982. On 25-3-1982 this Court passed an interim order staying operation of the order passed by the learned Sessions Judge. But in the meanwhile the order of the learned Sessions Judge was given effect to and the vehicle was delivered to the opposite party. Police submitted final report indicating that the case was one of mistake of law and that the matter was of a civil nature. The opposite party filed a protest petition which was registered as I.C.C. No. 165 of 1982. On 13-1-1983 the final report was accepted. Later on, the protest petition was also dismissed. On 7-9-1983 this Court disposed of Criminal Revision No. 126 of 1982. This Court observed that inasmuch as final report had been accepted by the learned S.D.J.M., the interim orders passed by him and the learned Sessions Judge had spent up their force. The learned S.D.J.M. should take up for consideration and dispose of the matter relating to release of the truck in accordance with law. Thereupon the learned S.D.J.M. heard the parties and by his final order dt. 29-11-1983 the learned Magistrate directed release of the vehicle in favour of petitioner No. 1. Opposite party carried Criminal Appeal No. 1 of 1984 to the learned Sessions Judge. It is alleged that the appeal was heard ex parte, notice of the appeal was not served on the petitioners who were the respondents in the appeal and by the final order, the learned Sessions Judge directed release of the vehicle in favour of opposite party.
3. Mr. S. K. Padhi who appeared for the petitioners at the time of hearing vehemently urged that the opposite party stole a march by suppressing notice on the petitioners and managed to obtain an ex parte order in his favour. The learned Sessions Judge missed the law as clearly enunciated by this Court, namely, the exercise under Section 457, Cr. P.C. was to find the person who was entitled to possession of the vehicle. The learned Sessions Judge missed the proper perspective and has gravely erred in the conclusion reached by him.
Mr. Palit, learned Counsel for the opposite party, repelled the attack arguing that the opposite party was the registered owner. He was under an obligation to the Bank to clear up the dues. He was liable for any infraction of the permit or license. Hence, direction of the Sessions Judge releasing the vehicle to his client, the rightful owner, could not be found fault with.
4. It is necessary to clear the decks before I consider the scope of Section 457 of the Cri. P.C. There is substance in the assertions of the petitioners that notices were not served on them. On verification of the appeal record, it transpires that notices were sent to the petitioners who were respondents in the appeal but were affixed to their houses by the process server as they were absent. The endorsement of the process server was that as the petitioners (respondents in the appeal) were away from their village and their house in connection with their business and there was none to receive the notices on their behalf, the notices were affixed to the thatch in the front. It is hardly any compliance with the requirement regarding service of notice. I am, therefore, of the opinion that notices were not duly served on the petitioners who were the respondents in the criminal appeal. The hearing of the appeal and disposal thereof by the learned Sessions Judge was, therefore, without jurisdiction and void. Inasmuch as the matter has been argued before me on merits, a remand is not called for and I proceed to dispose of the matter on merits.
5. The scope of Section 457 of the Code of Criminal Procedure has been the subject-matter of judicial discussion from time to time. The law, however, is settled so far as this Court is concerned by a decision of P. K. Mohanti, J. (as he then was) in Sri Prabhat Kumar Das v. Sri Bijoy Prasad Das (1980) 50 Cut LT 415. The law was stated in these terms:
Under the provisions of Section 457, Cri.P.C. if the Magistrate orders delivery of the property he has to deliver it to the person entitled to the possession thereof. He has to satisfy himself from the records and materials available before him that the person to whom the delivery is ordered is entitled to possession. If the materials are not sufficient he can make an enquiry into the matter by giving opportunity to the claimants before passing the order. In doing so, the Magistrate should confine himself only to find out as to who is entitled to possession of the property but not the title or ownership thereof. A person may be in unlawful possession, at the time of seizure and in that circumstances, it cannot be said that he is entitled to possession. It must be a lawful possession. The test, therefore, is not the mere possession of the property at the time of seizure, but as to who is entitled to lawful possession. The expression 'entitled to possession' is the sine qua non for the delivery of property under Section 457, Cri. P.C.
6. As it has been observed, the sine qua non for the delivery of property under Section 457, is the entitlement of the person to possess. Mere possession is not decisive. A person may be in unlawful possession of the property. That is not respected by the law. It has been clarified that a person may not have title or ownership of the property even then he could still be entitled to possession. This possession is not of a thief or a cheat but of a person who has right to hold it.
7. Now to the facts of the case. Opposite party had purchased the vehicle with the financial assistance of the State Bank. He was the registered owner. He had obtained a permit in respect of the vehicle and obtained insurance. But he entered into an arrangement with the petitioners for sale of the vehicle. That is not in dispute. Under the agreement the petitioners were to clear up the bank dues and out of the balance amount of Rs. 82,000/- payable to the opposite party, a sum of Rs. 20,000/- was paid on the date of agreement itself and the opposite party "delivered possession of the aforesaid vehicle to the second party members in running condition", vide paragraph-4. The balance Rs. 62,000/- was to be cleared by 31-3-1981. Otherwise, the amount would carry interest at the rate of 20 per cent per annum. These stipulations are crucial and I extract the paragraph in full:
6. That from today, i.e., from 15-1-1981, the 1st. party shall have no right whatsoever over the aforementioned vehicle and the 2nd. party members became owners of the vehicle and they have every right to exercise their ownership upon the vehicle.
There can be no manner of doubt after reading the stipulation aforesaid that from 15-1-1981 Title in the vehicle was transferred to the petitioners and on and from that day, they became the owners of the vehicle. What consequence would ensue vis-a-vis the Bank and the registered owner in case of the breach of the agreement is not relevant consideration while considering the question of release of the vehicle under Section 457 of the Cri. P.C. As was observed by S. K. Ray, J. (as he then was) in M. S. Jaggi v. Subaschandra Mohapatra (1977) 44 Cut LT 139 : 1977 Cri LJ 1902, the person entitled to possession would be one from whose possession the property was seized and such person is found not to have committed any offence so as to render his possession unlawful."
8. As I have already shown, pursuant to the agreement, the petitioners became the owner of the vehicle on and from 15-1-1981. Their possession of the vehicle since that day was as owners. If they did not honour the agreement and committed breach, they could be proceeded against for breach of contract or for damages or for other reliefs including recovery of vehicle etc. under the civil law. But possession of the vehicle did not amount to commission of an offence. I, therefore, vacate the decision of the learned Sessions Judge and uphold that of the learned Magistrate.
9. Mr. Palit, for the opposite party relied upon a decision of the Andhra Pradesh High Court in Kavaluri Sidda Reddy v. Bathala Rangaswamy Naidu 1981 Cri LJ 1543 where it was held that where the article produced before the Court was a motor vehicle, the same should be released to the person in whose name the Registration Certificate and the way permits stood. That decision has proceeded on a different consideration, namely, liability of the registered owner etc. It has not analysed the matter in the manner considered by this Court in the two decisions, referred to above. This Court has categorically stressed that possession of the property should be delivered to the person "entitled to possession". I am, therefore, with respect in disagreement with the decision rendered by the Andhra Pradesh High Court and follow respectfully the decisions of our Court which are otherwise also binding on me.
10. In the result, I allow this revision, set aside the decision of the learned Sessions Judge and restore that of the learned Magistrate.