Orissa High Court
Gadadhar Baliarsingh vs Srinivas Misra And Ors. on 21 August, 1989
Equivalent citations: 1990CRILJ1190
ORDER K.C. Jagadeb Roy, J.
1. The petitioner in this Criminal Revision has assailed the order dated 16-5-1988 passed by the Sessions Judge, Puri in Criminal Revision No. 97 of 1987 releasing the vehicle, a truck in favour of Opposite Party No. 1 under Section 457 of the Code of Criminal Procedure.
2. Succinctly stated, the case of the petitioner is that Opposite Party No. 1 is the registered owner of a truck bearing No. ORP 3395 and Opp. Party No. 2 is the financer of Opposite Party No. 1 in purchasing the said truck. According to the petitioner, by suppressing the fact of financial assistance of Opposite Party No. 2 purchase of the truck, Opp. Party No. 1 admittedly the registered owner of the truck, had approached him for a short term loan of Rs. 25,000.00 and obtained that loan from him by making mortgage of the said truck in favour of the petitioner. While the petitioner was in possession of the truck as the pawnee, one FIR was lodged by the father of Opp. Party No. 1 in Delenga P.S. alleging that the truck had been taken away from the lawful possession of his son. The police seized the vehicle from the bari of the petitioner on 10-4-1987 in Delanga P.S. Case No. 42 of 1987 corresponding to G. R. Case No. 483 of 1987 in the court of the Sub-Divisional Judicial Magistrate, Puri filed under Section 379/352, Indian Penal Code. The present petitioner and Opp. Party Nos. 1 and 2 filed separate petitioner under Section 457 of the Code of Criminal Procedure before the Sub-Divisional Judicial Magistrate, Puri for release of the vehicle each claiming to be entitled to the possession thereof.
3. The lower court by order dated 17-7-1987 held that the possession of the vehicle by petitioner No. 1 was lawful on the basis of the agreement annexed as Annexure-1 to the Criminal Revision purported to be an agreement between Opposite Party No. 1 as registered owner of the vehicle and the petitioner which the opposite Party No. 1, the owner had pawned his vehicle in favour of the petitioner. The trial court accordingly passed an order releasing the truck in favour of this petitioner on executing a bond for Rs. 2 lakhs" with one surety for the like amount and with a direction to produce the truck as and when required by the court. The petitions of Opposite Parties 1 and 2 for taking possession of the vehicle were rejected.
4. Against the said order of the learned Sub-Divisional Judicial Magistrate, Puri, the present Opposite Party No. 1 filed Revision Application before the Sessions Judge, Puri bearing Criminal Revision No. 97 of 1987 in which by order dated 16-5-1988, the Sessions Judge, Puri passed the order setting aside the order of the Sub-Divisional Judicial Magistrate, Puri dated 17-7-87 and directed release of the truck in favour of Opposite Party No. 1 on executing a bond for Rs. 2 lakhs with an undertaking to produce the truck before the S.D.J.M., Puri as and when required.
5. As already stated being aggrieved by the said order of the Sessions Judge, Puri passed in Criminal Revision No. 97 of 1987, the petitioner, the pawnee, from whose possession the truck was seized has preferred this revision for quashing the said order of the Sessions Judge and with a prayer that the vehicle should be allowed to him in same terms and conditions as per the order of the S.D.J.M., Puri.
6. Mr. R. N. Sahu, learned counsel for the petitioner argued that in view of the fact that there was a mortgage of the vehicle in his favour in proof of which he had produced a registered deed of mortgage in court, his possession was lawful and should have been allowed to take delivery of the truck as per the order of the learned S.D. J.M., Puri by executing the bond. Learned counsel Mr. Mishra appearing for the Opposite Party, however, challenged the document as not genuine, and further argued that he being the owner, the Sessions Judge, Puri had rightly passed the order in his favour for taking delivery of the vehicle. Section 457 of the Code of Criminal Procedure reads as follows:-
"457 (1). Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto to appear before him and establish his claim within six months from the date of such proclamation."
In the present case, the seizure of the truck by the police officer had been reported to the Magistrate under the provisions of this Code, and there is no dispute regarding the jurisdiction of the Magistrate in exercising his power under Section 457, Code of Criminal Procedure. The only point that is in dispute is that of all the three persons, namely the owner, the financer and the person who claims to be in possession of the property under an agreement of mortgage who would be preferred by the court in making an order for delivery of the vehicle in question. Section 457 authorises the Magistrate to pass an order respecting the delivery of the property to the person entitled to the possession thereof. In a decision reported in (1987) 64 Cut LT page 547 : (1988 Cri LJ 55) (Mohemmed Zariff v. Sk. Zinaullah), this Court has held as follows (at p. 58 of Cri LJ) :--
"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".
In the above case, the Opposite Party was a registered owner of a truck who purchased the truck after obtaining finance assistance from the State Bank of India. After the purchase, he entered into an agreement with the petitioner of that case for sale of the truck and delivered the truck to the person with whom he entered into an agreement and received a part consideration for the truck. The person who purchased the truck promised to take care of the S.B.I.'s loan and to pay the balance amount of which only a part payment was made over to him as advance. Subsequently the purchaser did not clear up the balance dues and also did not return back the vehicle. F.I.R. was lodged by the Opposite Party in that case who owned the vehicle by purchasing through the help of the financer alleging commission of criminal breach of trust against the subsequent purchaser. This court confirmed the order of the Sub-divisional Judicial Magistrate in releasing the vehicle in favour of the second purchaser who purchased the vehicle, but subsequently did not pay the balance consideration money in time as there was a stipulation in that agreement of sale that "From 15-1-1981 the first party would have no right whatsoever over the above mentioned vehicle and the second party became the owner of the vehicle." The second party would have, accordingly, exercised right upon the vehicle. What consequence would have been ensued vis-a-vis the Bank and the registered owner in case of the breach of the agreement was not held to be a relevant consideration while considering the question of release of the vehicle under Section 457 of the Code of Criminal Procedure. Accordingly, in releasing the vehicle under Section 457, Code of Criminal Procedure where a person is entitled to possession the court is to pay sufficient attention to the ownership of the vehicle. In another case, reported in 1988 Cri LJ 810 (S. Abdul Jabbar v. Khaleel Ahamed), the Karnataka High Court faced with a case where the claimants for the vehicle were the registered owner and a person who claimed to have purchased the vehicle. Even though the alleged purchaser produced some documents to substantiate his claim regarding purchase of the vehicle, the petitioner has denied to have an agreement for transfer of the vehicle in the name of the complainant, the registered owner. Following another decision of the said court reported in 1980 Cr. LJ 422, the Karnataka High Court held the proper person to whom the custody of the vehicle was to be entrusted was the registered owner of the vehicle since when the claim of ownership by purchase was sought to be disputed.
7. In the present case, the Opposite Party No. 1, the registered owner of the vehicle has strongly contested the registered document through which the petitioner has been claiming as a pawnee to secure the loan of Rs. 25,000/-. The criminal court cannot decide ownership of the vehicle but on the face of it where there is no dispute regarding the registered owner of the vehicle but there is a dispute regarding the transfer the safest course open for the court is to give the interim custody of the vehicle in favour of the registered owner. That apart on a perusal of the agreement which is made Annexure-1 to the revision petition, one of the conditions of the agreement reads as follows:--
"That it is agreed upon that the 2nd party would keep the vehicle with his possession from 28-11-1986 to 26-11-87. It is further decided and agreed upon that the First Party would release the said vehicle from Second Party on 29-11-1987 after repudiating the principal amount along with interest thereon as mentioned above."
The second party to the agreement is the registered owner, the present Opposite Party No. 1 in this revision and the first party is the pawnee. Even if this agreement is considered to be a genuine one because of the stipulations quoted above, the pawnee namely, the present petitioner does not appear to have any right to hold the vehicle after 29-11-1987. It is the intention of the parties that the present petitioner, namely, the pawnee was not entitled to hold the vehicle in his possession after 29-11-1987. The word "make such order as thinks fit in Sub-section (1) of Section 457 does not control the power of the Magistrate as to the disposal of the property. The power limits (a) either to deliver the property to the person entitled to possession thereof, or (b) disposal of it.
8. The person entitled to possession would be one from whose possession the property was seized and such possession is not an outcome of the offence so as to render his possession unlawful. The power to ascertain as to who is the person entitled to possession vests in the Magistrate under Section 457. It was held in the case of Kasturilal Ralia Ram Jain v. State of U.P., reported in AIR 1965 SC 1039: (1965 (2) Cri LJ 144) dealing with its corresponding old Section 523 that if a person from whom the property was seized is charged with an offence or is suspected of having committed an offence and the police launch an investigation, he cannot be a person entitled to possession until after the final report is submitted. Until he has cleared up the suspicion of having committed a crime, his possession cannot be deemed to be lawful and, as such, even though the property was last seized from him, such possession would not be construed to be lawful until the crime is wiped out either by submission of a final report or by discharge or acquittal.
9. In the present case the petitioner from whose custody the vehicle which is alleged to have been stolen has been seized cannot claim to be in lawful possession of the same in order to claim his right to take interim custody of the vehicle as long as he is not cleared by the court of the charge of theft. Taking all the facts into consideration, I am of the view that the Sessions Judge, Puri had arrived at the right conclusion and made order for the interim custody of the vehicle in favour of Opposite Party No. 1 who is admittedly the registered owner of the vehicle. In view of what is stated above. I do not find any merit in this revision which is accordingly dismissed. There shall be no order as to costs.