Andhra HC (Pre-Telangana)
G. Jayachandra Naidu vs G. Lokamma And Ors. on 20 November, 2003
Equivalent citations: 2004(1)ALD(CRI)60, 2004CRILJ1615
Author: B. Seshasayana Reddy
Bench: B. Seshasayana Reddy
ORDER B. Seshasayana Reddy, J.
1. This Criminal Revision Case is directed against the order dated 6-8-2003 passed in Crl. M.P. No. 585 of 2003 in Crime No. 21/2002 on the file of IV Additional Judicial Magistrate of First Class, Chittoor, whereby the learned Magistrate allowed the application filed Under Section 451 of Cr.P.C.
2. R-1 herein filed a complaint against the petitioner and R-2 to R-7 before IV Additional Judicial Magistrate of First Class, Chittoor on 23-10-2002 alleging inter alia that the petitioner in collusion with R-2 to R-8 fabricated a document alleged to be executed by her husband Munuswamy Naidu on 16-8-99 in respect of the tractor and trailer bearing No. AEE 122Q/ABC 4107 and filed a suit in O.S. 214 of 2002 and made unsuccessful attempts to obtain interim orders by filing I.A. 807/2002. It is further alleged that R-2 to R-4 namely E. Subramanyam Naidu, E. Papamma, E. Mohan Naidu who took the tractor-trailer on lease in the year 2000 and they neither paid the lease amount nor returned the tractor-trailer and they refused to hand over the same in collusion with the petitioner herein and R-6 and 7 and thereby committed offences punishable Under Sections 403, 468 and 471, IPC. The learned Magistrate forwarded the complaint to the Station House Officer, Palasamudram Police Station Under Section 156 (3), Cr.P.C. for investigation. On receipt of the complaint", the Station House Officer,' Palasamudram P.S. registered a case in Cr.No. 21/2002 Under Sections 403, 468 and 471, IPC on 5-11-2002 and issued FIR. During the course of investigation he seized the tractor-trailer on 13-1-2003 and it appears that the petitioner herein and others allegedly took away the tractor-trailer forcefully from the custody of police on 15-1-2003 for which police registered a case in Cr.No. 1 of 2003 for the offences punishable Under Sections 147, 353 and 384 r/w 149, IPC and the tractor-trailer restored to their possession and produced the same before the Court. The petitioner herein filed Crl. M.P. No. 487 of 2003 and whereas R-1 herein filed Cr. M.P. No. 585 of 2003 Under Section 451 of Cr.P.C. for interim custody of the tractor-trailer pending investigation of the crime. The learned Magistrate by a common order dated 6-8-2003 allowed Crl. M.P. No. 487/2003 and dismissed Crl. M.P. No. 585 of 2003. In nutshell the learned Magistrate ordered for the release of the tractor and trailer to R-1 herein for interim custody subject to certain conditions. Feeling aggrieved by the order, the petitioner has filed this Criminal Revision Case.
3. Learned counsel for the petitioner contends that the petitioner is the purchaser of the tractor-trailer from the original owner namely G. Munuswamy Naidu under an agreement dated 16-8-99 for Rs. 1,20,000/-and, therefore, he is entitled for interim custody of the tractor-trailer pending investigation. It is further contended by him that the tractor-trailer came to be seized from the possession of the petitioner and, therefore, he is entitled to seek return of the tractor-trailer for interim custody pending investigation of the crime. It is also submitted by him that the criminal Court has no jurisdiction to pass orders with regard to interim custody of the tractor-trailer since the civil Court has seized of the matter in O.S. 214 of 2003.
4. Per contra, it is contended by the learned counsel for R-1 that R-1 is the registered owner of the tractor-trailer and, therefore, she is entitled to seek return of the same for interim custody. He further submits that the learned Magistrate considered the material brought on record in right perspective and ordered for the return of the tractor-trailer to R-1 herein for interim custody and, therefore, the same is not liable to be interfered with in this revision. Both the counsel relied on certain decisions in support of their respective contentions.
5. It is not in dispute that the police seized the tractor and trailer during the course of investigation in Cr. No. 21 of 2003. The said crime arises out of the complaint presented by R-1 herein. The Supreme Court held in Ashok Kumar v. State of Bihar (2001) 1 Andh LD (Cri) 204 : 2001 AIR SCW 2314, that keeping the vehicle in the compound of the Court indefinitely for a very long time till the final disposal of this case is not necessary and it is more advisable to entrust it to the registered owner on behalf of the Court under certain conditions. The petitioner herein claims that he purchased the tractor-trailer under an agreement dated 16-8-99 for a sum of Rs. 1,20,000/- from Munuswamy Naidu who is no other than his elder brother. Whereas R-1 claims that she is the registered owner of the tractor-trailer and her name has been entered in the R.C. book. Indeed the petitioner filed O.S. 214/ 2002 seeking permanent injunction in respect of the tractor and trailer. He did not obtain any interim orders in the said suit. It has come on record that the petitioner has filed I.A. No. 807/2002 against R.T.O., Chittoor and R.T.O., Tirupathi seeking interim injunction against them from transferring the ownership in favour of R-1 herein and her children and the said application ended in dismissal. It could be said with certainty that the Civil Court did not pass any interim orders with regard to the custody of the tractor and trailer. Section 451 of Cr.P.C. reads as follows :
"Section 451 : Order for custody and disposal of property pending trial in certain cases : When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial and if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
Explanation :-- For the purpose of this Section, "property" includes.
(a) property of any kind of document which is produced before the Court or which is in its custody.
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the ' commission of any offence."
In Gopalaswamy G. V. v. Nagarajan, 1987 Mad LW (Cri) 487 the Madras High Court held that an order passed under Section 451 Cr.P.C. is only temporary in nature and would subsist only till the disposal of the main case itself. In B. Lalithchand Nadar v. State, (1990) 2 Mad WN (Cri) 23 the Madras High Court held that order Under Section 451 Cr.P.C. is only for a temporary arrangement to provide custody with a proper person as the Court thinks fit, even if such person is the owner of the property, his possession or custody is only as representative of the Court and not in his independent right. In P. Sekar (Accused) v. State by Inspector of Police, 1992 Mad LW (Cri) 47 it has been held that in matters relating to motor vehicles, interim custody generally has to be ordered in whose name the Registration Certificate stands and who can put the vehicle to the best use. These three decisions have been followed by the Madras High Court in T. Senithil Kumar v. Sub-Inspector of Police, (2001) 1 Andh LJ (Cri) 166. Karnataka High Court in U. Kariyappa v. P. Sreekantaiah, 1980 Cri. L.J. 422 has held that though the criminal Court has discretion to make any order as it thinks fit for the proper custody of such property, such a discretion has to be exercised judiciously and not arbitrarily. When the trial Court makes any such order regarding the interim custody of the property in exercise of judicial discretion as provided under Section 451 Cr.P.C. the revisional Court would be very slow to interfere with that order made by the Magistrate in proper exercise of the judicial discretion. It has been further held that the criminal Court while making an order of interim custody, as provided under Section 451 Cr.P.C. has to enquire first of all, whether the person who claims for the interim custody of the vehicle seized, is a registered owner entitled to use the vehicle as required under the provisions of the Motor Vehicles Act. If he is such a person, then ordinarily, he is a right and correct person to whom the custody of the vehicle has to be entrusted. A single Judge of our High Court in Kavaluri Sidda Reddy v. Bathala Rangaswamy Naidu, 1981 (2) HC 30 APLJ (sic) held that vehicle has to be released in favour of persons in whose name its registration certificate stands but not to a person who cannot legally use the vehicle.
6. It is strenuously contended by learned counsel for the petitioner by placing reliance on the decision of our High Court in In Re Masgi Bitchanna, AIR 1969 Andh Pra 156 that criminal Court has no jurisdiction to deal with the aspect of interim custody of the tractor-trailer since the issue with regard to agreement dated 16-8-99 in respect of the tractor-trailer has been seized of by the civil Court. In the above referred decision the criminal Court directed for retention of the lorry seized during the course of investigation until such time as either of the claimants establishes title in a competent civil Court. That order came to be passed by the criminal Court while recording acquittal of the accused on full trial. Coming to the facts of the case on hand the petitioner filed the suit O.S. 214/2002 in respect of the tractor-trailer against R-1 and others. He did not obtain any interim orders in the said suit. It has come on record as a fact that he made unsuccessful attempts to obtain interim orders against RTO, Chittoor and Tirupathi by filing I.A. 807/ 2002. The petitioner claims that he purchased the tractor trailer under an agreement from Munuswamy Naidu on 16-8-1999. But there is no record of this taking any steps to get his name entered in the C-Book. It is contended by the counsel for the petitioner that the vehicle came to be seized from the possession of the petitioner and therefore he is entitled to seek interim custody of the same under Section 451 of Cr.P.C. He placed reliance on the decision of our High Court in B. Srihari Prasad v. Avet Chemicals (P) Ltd. (1998) 2 Andh LD 415 wherein it is held that the vehicle should ordinarily be returned to the person from whose possession the Investigation Officer seized during the course of investigation. In the case cited the person from whom the vehicle came to be seized is the registered owner. I feel it apposite to refer the relevant portion of the above-cited judgment, which is as follows :
"8. While considering the conflicting claims for the custody of a motor vehicle seized by the police, one has to consider the effect of the provisions of the Motor Vehicles Act for finding out the true claimant before passing order relating to the custody of that vehicle during the pendency of the criminal case. From the provisions relating to the registration of motor vehicles under the M.V. Act, it is clear that the registration certificate is an essential necessity before any such motor vehicle can be made use of and that any person in whose favour this certificate of registration is issued, obviously, would be the owner thereof, and such a person is entitled to remain in possession of the vehicle. Further, non compliance of certain provisions of the M.V. Act sometimes makes the owner responsible. In those circumstances, it would be ordinarily prudent and in consonance with the provisions of the M.V. Act to allow such a motor vehicle to remain in possession of such a person in whose name the certificate of registration stands. By this, I do not mean that in each and every case, the vehicle should be given to the interim custody of the holder of registration certificate. There may be instances where the registration certificate holder might have sold the vehicle and the registration certificate not yet transferred. In such cases, the claims of such persons also should be considered as against the claim for the person having registration certificate."
It is not in dispute that the registration certificate of the tractor-trailer stands in the name of R-1 and it does not stand in the name of the petitioner. If so, the vehicle could be used only by R. 1. If the petitioner is permitted to use the vehicle and if he were to violate any of the conditions of the permit then, it is R-1, who will be held liable but not the petitioner. Similarly, if there is an accident, any compensation has to be paid under the M.V. Act, it is R-1 who will be held liable but not the petitioner. In the light of these peculiar circumstances, it will be more appropriate to release the tractor trailer in favour of R-1. When a motor vehicle is seized by the police one has to consider the effect of the provisions of the Motor Vehicles Act for finding out the true claimant before passing orders relating to such property during the pendency of the criminal proceedings under Section 451 of Cr.P.C. From the provisions relating to the registration of motor vehicles under the Motor Vehicles Act, it is clear that the registration certificate is an essential necessity before any such motor vehicle can be made use of and that any person in whose favour this certificate of registration is issued, obviously would be the owner thereof. In case of any transfer of any ownership in respect of that motor vehicle, the procedure is contemplated under Section 31 of the M.V. Act and till any such transfer of ownership is entered in the certificate of registration, one has to take it that the person in whose favour such a certificate of registration is issued by the Motor Transport Authorities is the owner and such a person is entitled to remain in possession of the vehicle. Non compliance of certain provisions of the Motor Vehicles Act, sometimes makes the owner responsible. In those circumstances, it would be ordinarily prudent and in consonance with the provisions of the Motor Vehicles Act; to allow such a motor vehicle to remain in possession of such a person in Whose name the certificate of registration stands.
7. The petitioner claims that he purchased the tractor-trailer from his brother Munuswamy Naidu. He did not take any steps to get the vehicle transferred in his name for nearly three years. After a lapse of three years, he filed a suit in respect of the tractor-trailer against the legal heirs of Munuswamy Naidu. He made certain unsuccessful attempts to get interim orders in the said suit. In these circumstances, the criminal Court ordered return of the tractor-trailer to R-1 who is the registered owner of interim custody pending further proceedings. I do not see any illegal, irregularity or impropriety in the impugned order warranting interference of this Court in exercise of revisional powers under Sections 397 and 401 of Cr.P.C.
8. In the result, this Criminal Revision Case fails and the same is dismissed.