Jammu & Kashmir High Court
Gh. Mohi-Ud-Din Rather vs Shameem Ahmad Wani on 12 May, 2006
Equivalent citations: 2006CRILJ4158, 2007(1)JKJ127
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
ORDER Mansoor Ahmad Mir, J.
1. This revision is directed against the order dated 10th December, 2005, hereinafter, for short the impugned order, passed by learned Chif Judicial Magistrate, Sopore, in complaint titled Ghulam Mohi-ud-Din Rather v. Shameem Ahmad Wani under Section 379 of RPC, whereby and, and whereunder the complaint came to be dismissed and the seized vehicle came to be released in favour of the person from whom same was seized.
FACT:
2. Petitioner/complainant filed a complaint on 10th November, 2005 before learned Chief Judicial Magistrate, Sopore, against the respondent under Section 379 of RPC. It was alleged that complainant is the owner of tractor bearing registration No. JK09/7050. He had gone to Watlab on the tractor along with trolley for collecting ashes and while returning back he saw a maruti car coming from opposite side at Manji Sopore at about 8.30 p.m. in which accused along with 7 other persons were travelling who came down. He could identify only accused and not other persons who stopped tractor and brought down complainant and forcibly took away the tractor with trolley along with ashes loaded therein. Complainant had prayed in the said complaint that matter be got enquired/investigated in terms of Section 202 of Criminal Procedure Code.
3. Preliminary statements of complainant and one witness Mohammad Maqbool came to be recorded and learned Chief Judicial Magistrate passed order dated 10th November, 2005 and directed SHO, Police Station, Sopore to conduct enquiry/investigation in order to ascertain the truth/falsehood of the complaint and deferred issuance of process against the accused.
4. Police conducted enquiry, recorded statements of complainant, Ghulam Mohi-ud-Din Rather and the witnesses and seized tractor along with trolly and submitted report before learned Chief Judicial Magistrate, Sopore. Investigating Officer submitted report that there was a dispute in between the applicant and Shameem Ahmad Wani for an amount of Rs. 4.50 lakhs. Complainant had sold the tractor to Shammem Ahmad Wani in lieu of Rs. 1.20 lakhs and agreed to execute papers on 10th November, 2005 before the Court of competent jurisdiction at Sopore. Non-applicant Shameem Ahmad Wani, after taking possession of the tractor loaded wooden boxes in the tractor from Sopore to Pattan. On 10th November, 2005 complainant presented the complaint before the Court and also lodged, missing report in police station about his son and the tractor. During investigation it was found that his son was safe and sound at his home. In fact the complainant had sold tractor to Shameem Ahmad Wani in lieu of Rs. 1.20 lakhs. The crux bf the dispute was that complainant was trying to take back the possession of tractor and grab the same and, implicate the non-applicant without any justification.
5. Learned Chief Judicial Magistrate, after perusing the complaint, police report and statement of witnesses recorded, dismissed the complaint and directed release of the vehicle in favour of the person from whose possession it was seized.
6. It is worthwhile to mention here that complainant had stated before the police on 28th November, 2005 that he had not gone to Watlab on tractor with trolley but in fact his son had gone there who was intercepted by accused and other eight persons, some of them were in maruti vehicles and some on motor cycles. His son had identified Shameem Ahmad Wani only. His statement runs contrary to the averments contained in the complaint. His son Aamir Jan Rather had deposed that when he was coming from Watlab on 9th November, 2005 two Maruti vehicles and one motor cycle appeared and encircled him and tractor with trolley. He could identify Shameem Ahmad Wani only and not other persons.
7. Learned Magistrate after hearing arguments dismissed the complaint.
8. Mr. Qayoom, learned Counsel for petitioner/complainant argued that learned Magistrate had already taken cognizance and had only to issue process. It was not within his competence to dismiss the complaint and direct release of the vehicle in favour of a person who is not owner in terms of the provisions of Motor Vehicles Act.
9. Following questions emerge for consideration:
1. Whether the cognizance was, taken?
2. Whether after taking cognizance, Magistrate was competent to dismiss the complaint? And
3. Whether the vehicle could be released in favour of a person from whose, possession it was seized.
10. In order to appreciate the controversy, it is profitable of a notice relevant provisions of jammu & Kashmir Criminal Procedure Code, hereinafter, referred to as Code, herein.
Section 156 of the Code reads as tinder:
156. Investigation into cognizable cases(1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having Jurisdiction over the local area within the local limits of such station would have power to inquire into or try under the provisions of Chapter XV relationg to the place of inquiry or trial.
(2) No proceeding of police officer in any such case shall at any stage be called in question on the ground that the, case was one which such, office was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.
11. In terms of Sub-clause (3) of Section 156 of the Code, Magistrate is empowered to direct investigation in terms of Sub-clauses (1) and (2) of Section 156 of the Code.
12. It is also useful to reproduce Section 190 of the Code herein, which reads as under:
190. Cognizance of offence by Magistrate.(1) Except as hereinafter provided, [any Chief Judicial Magistrate and any other Judicial Magistrate] specially empowered in this behalf, may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer;
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.
(2) The [High Court may empower any Judicial Magistrate] to take cognizance under Sub-section (1), Clause (a) or Clause (b), of offences for which he may try or commit for trial.
(3) The [High Court may empower any Judicial Magistrate] of the first or second class to take cognizance under Sub-section (1), Clause (c), of offences for which he may try or commit for trial.
13. Magistrate is empowered to take cognizance upon receipt of the complaint. The powers exercised by the Magistrate In terms of Section 190 of the Code and in terms of Sub-clause 3 of Section 156 of the Code are different and are of different kind and different nature.
14. Sub-clause 3 of Section 156 of the Code is falling in Chapter XIV of the Code, "Information to the Police rand their powers to investigate". This chapter deals with powers of police officers, how to investigate cognizable offences. The investigation in terms of Chapter XIV can be done by the Police even without the orders of Magistrate. If Magistrate directs such an investigation in terms of Sub-clause 3 of Section 156 of the Code, it cannot be said that different kind of investigation is to be conducted. Police has to conduct investigation as provided in terms of Chapter XTV.
15. Apex Court in case titled D. Lakshminarayana v. V. Narayana , has held as under:
13. It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with "must take cognizance". The word "may" gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.
16. If the Magistrate takes cognizance in terms of Section 190 of the Code the Magistrate has to follow the procedure contained in Chapter XVI (OF COMPLAINTS TO MAGISTRATES). After taking cognizance of an offence on complaint in terms of Section 190 of the Code, the Magistrate has to follow procedure in terms of Section 200 of the Code.
17. Apex Court in case D. Lakshminarayana v. V. Narayana reported in 1976 Cri LJ 1361 has held as under:
14. This raises the incidental question: What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted In a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case Including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he Is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, Instead of proceeding under Chapter XV he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.
18. It is useful to reproduce Section 200 of the Code herein, which read as under:
200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall at once [examine the complainant and the witnesses present, if any upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses] and also by the Magistrate:
Provided as follows:
(a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under Section 192;
(b) when the complaint is made in writing, nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties;
(c) when the case has been transferred under Section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.
19. Apex Court in case titled S. N. Palanitkar v. State of Bihar , has held as under:
15. In case of a complaint under Section 200, Cr.P.C. or IPC a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the Issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words 'sufficient ground used under Section 202 have to be construed to mean the satisfaction that a prima fade case Is made out against the accused and not sufficient ground for the purpose of conviction.
20. Magistrate after taking cognizance may postpone the issue of process for the reasons to be recorded in writing and may direct enquiry or investigation by any Magistrate subordinate to him or by any police officer or by a person which he thinks fit, to ascertain truth or falsehood of the complaint.
21. It is profitable to reproduce Section 202 of the Code herein, which reads as under:
202. Postponement for issue of process.(1) Any Magistrate, on receipt of a complainant of an offence of which he is authorized to take cognizance, or which has been transferred to him under Section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself, or, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint:
Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200.
(2) If any inquiry or investigation under this section is made by a person not being a Magistrate or a police officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police station, except that he shall not have power to arrest without warrant.
(3) Any Magistrate inquiring into a case under this section may, if he thinks fit, take evidence of witnesses on oath.
22. Section 202 of the Code provides and mandates that nature of investigation conducted is limited and it is only a helping hand to the Magistrate to decide whether there are sufficient grounds for issuing process and proceeding further in the complaint.
23. Apex Court in case S.N. Palanitkar v. State of Bihar has held as under:
17. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi this Court dealing with the scope of inquiry under Section 202 has stated that it is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (a) on the materials placed by the complainant before the Court (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out (c) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. It is also indicated by way of illustration in which cases an order of the Magistrate issuing process can be quashed on such case being where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused.
24. Apex Court in case Mohd. Yousuf v. Smt. Afaq Jahan reported in 2006 AIR SCW 95 : 2006 Cri LJ 788, has held as under:
8. The various steps to be adopted for investigation under Section 156 of the Code have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer incharge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.
9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police office or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there Is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. "or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.
25. Apex Court in case Tula Ram v. Kishore Singh , has held as under:
14. ...This on a careful consideration of the facts and circumstances of the case the following legal propositions emerge:
1. ...
2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:
(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightway Issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct on enquiry by any other person or an investigation by the police.
3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
4. Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complainant filed before him and take action under Section 190 as described above.
26. Apex Court in case Chandra Deo Singh v. Prakash Chandra Bose alias Chabi Bose , has held as under:
(8) Coming to the second ground, we have no hesitation in holding that the test propounded by the learned single Judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry under Section 202 has been considered. Amongst those decisions are: Paranand Brahmachari v. Emperor AIR 1930 Pat 30 : 1929 (30) Cri LJ 554; Radha Kishun Sao v. S.K. Misra AIR 1949 Pat 36 : 1948 (49) Cri LJ 599; Ramkisto Sahu v. State of Bihar ; Emperor v. J.A. Finan AIR 1931 Bom 524 and Baidya Nath Singh v. Musppatt ILR 14 Cal 141. In all these cases, it has been held that the object of the provisions of Section 202 is enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The Courts have also pointed out in these cases that what the Magistrate has to see whether here is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned Judges in some of these cases have been at paints to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in Sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complaint and the statements made before him by persons examined at the instance of the complainant.
27. This Section provides what procedure is to be adopted when Magistrate decides to postpone the issue of process. After receiving the report, the Magistrate has to follow the procedure contained in Section 203 of the Code contained in Chapter XVI or may proceed in terms of Section 204 of the Code contained in Chapter XVII. It is profitable to reproduce Section 203 of the Code herein, which reads as under:
203. Dismissal of complaint.The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant [and the witnesses] and the result of the investigation or inquiry (if any) under Section 202, there is in his Judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing.
28. Section 203 mandates that Magistrate, before complaint is made, may dismiss the complaint after considering the statement of the complainant, witness, if any, and result of investigation or enquiry, if any conducted and made under Section 202 of the Code.
29. Apex Court in case titled S.N. Palanitkar v. State of Bihar reported in AIR 2001 SC 2060 : 2001 Cri LJ 4765, has held as under:
18. Cautioning against issuing of process so that it should not be an instrument in the hands of the private complainant as vendetta to harass the person needlessly, this Court in Punjab National Bank v. Surendera Prasad Sinha 1993 Suppl (1) SCC 499 : 1992 Cri LJ 2916 has this to say in para 6:
It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances Into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak person vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint against the appellants without any prima facie case to harass them from vendetta.
19. Similarly in Madhvrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre 1996 (1) SCC 692 : 1988 Cri LJ 853, this Court has stated that The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilized for any oblique purpose and where In the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though It may be at a preliminary stage.
30. Apex Court in case Chandra Deo v. Prokash Chandra , has held as under:
12. On the basis of these observations it was urged that this Court has held that a Magistrate has the power to weigh the evidence adduced at the enquiry. As we read the decision it does not lay down an inflexible rule but seems to hold that while considering the evidence tendered at the enquiry it is open to the Magistrate to consider whether the accused could have acted in self defence. Fortunately, no such question arises for consideration in this case but we may point out that since the object of an enquiry under Section 202 is to ascertain whether the allegations made In the complaint are Intrinsically true, the Magistrate acting under Section 203 has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under Section 202, or statements made In an investigation under that section, as the case may be. He is not entitled to reply upon any material besides this. By "evidence of other witnesses" the learned Judges had apparently in mind the statements of persons examined by the police during investigation under Section 202. It is permissible under Section 203 of the Code to consider such evidence along with the statements of the complainant recorded by the Magistrate and decide whether to Issue process or dismiss the complaint. The investigation in that case was made by the police under Section 202, Cr.P.C. at the Instance by the Presidency Magistrate, Apparently, the statements of the various witnesses questioned by the police were self-contradictory. That being the case, it was open to the Presidency Magistrate to consider which of them to accept and which to reject. The enquiring Magistrate has not stated nor has the High Court found in the case before us that the evidence adduced on behalf of the complainant and his own evidence were self contradictory and therefore, it could not be said that there was anything intrinsically false in the allegations made in the complaint. Learned Counsel for the appellant referred us to the decision of this Court in Ramgopal Ganpatrai Rai v. State of Bombay and 107 : 1958 Cri LJ 244. In that case, after quoting a passage from Halsbury's Laws of England. Vol. 10, 3rd Edn. in Article 666 at p. 365 where the law regarding commitment for trial has been stated, this Court has observed:
In each case, therefore the Magistrate holding the preliminary inquiry has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit, and unless he is so satisfied, he is not to commit. Applying the aforesaid test to the present case, can it be said that there is no evidence to make out a prima facie case, or that the voluminous evidence adduced in this case is to incredible that no reasonable body of persons could rely upon it. As already indicated, in this case, there is a large volume of documentary evidencethe latter being wholly books and registers and other documents kept or is sued by the Mills themselves, which may lend themselves to the inference that the accused are guilty or to the contrary conclusion. The High Court has taken pains to point out that this is one of those cases where much can be said on both sides. It will be for the jury to decide which of the two conflicting versions will find acceptance at their hands. This was pre-eminently a case which would have been committed to the Court of Session for trial, and it is a little surprising that the learned Presidency Magistrate allowed himself to be convinced to the contrary.
Thus, where there is a prima facie case even though much can be said on both sides, a committing Magistrate is bound to commit an accused for trial. All the greater reason, therefore, that where there is prima facie evidence, even though an accused may have a defence like that in the present case that the offence is committed by some other person or persons, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. Incidently, we may point out that the offence with which respondent No. 1 has been charged with is one triable by jury. The High Court, by dealing with the evidence in the way in which it has done, has in effect sanctioned the usurpation by the Magistrate of the function of a jury which the Magistrate was wholly incompetent to do.
31. Applying the test to the instant case, the Magistrate had taken cognizance vide order dated 10th November, 2005 and postponed the issue of process and directed the police concerned to conduct enquiry in order to ascertain truth or falsehood of the complaint and after receiving the report, learned Magistrate dismissed the complaint while keeping in view the statements recorded during investigation and report of enquiry.
32. The argument of Mr. Qayoom, learned Counsel for petitioner, that Magistrate after taking cognizance had to issue process in terms of Section 204 of the Code is devoid of any force. This provision can be pressed into service on two conditions; when Magistrate take cognizance and decides to issue process without postponing the issue of process or if the Magistrate defers the issuance of process and directs conducting of enquiry/investigation and after receiving enquiry/investigation report can hold that there are sufficient grounds for proceeding in terms of Section 204 of the Code. It is profitable to reproduce Section 204 of the Code herein, which read as under:
204. Issue of process.(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the forth column of the Second Schedule, a summons should issue in the first instance, he shall issued his summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, he may issue a warrant, or, if he thinks fit, a summons, for causing the. accused to be brought or to appear at a certain time before such Magistrate or (if he has not jurisdiction himself) some other Magistrate having jurisdiction.
(1-a) No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed.
(1-b) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub-section (1) shall be accompanied by a copy of such complaint.
(2) Nothing in this section shall be deemed to affect the provisions of Section 90.
(3) When by any law for the time being in force any process fees or other fees sire payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
33. Applying the test to the instant case, it appears that complaint came to be presented before the Magistrate in terms of Section 190 of the Code, who after taking cognizance examined the complainant under Section 200 of the Code postponed issuance of process in terms of Section 202 of the Code and referred the matter to police for investigation in order to ascertain the truth or falsehood and thereafter dismissed the complaint in terms of Section 203 of the Code, referred hereinabove.
34. Section 204 of the Code can be pressed into service if the complaint is not dismissed in terms of the mandate of Section 203 of the Code.
35. Having glance of the above discussion, learned Magistrate has rightly taken cognizance in terms of Section 190 of the Code read with Section 200 of the Code and directed police to conduct enquiry/investigation in terms of Section 202 and dismissed complaint in terms of Section 203. The order to that extent is legally tenable and no illegality or error has been committed by the Court below.
36. The core question now to, whether the order in so far as it relates to directing release of vehicle is legally correct?
37. It is admitted case of the complainant that vehicle was in possession of the alleged accused at the time of filing complaint and was seized from his possession by the police.
38. Admittedly, the registration certificate of the tractor and the trolley is not in the name of the accused but in the name of the complainant who had, as reported by the police, sold the same in lieu of Rs. 1.20 lakhs to the accused Mr. Qayoom relied on judgment of the Apex Court reported in 2001 AIR SCW 2289 : 2001 Cri LJ 4946.
39. In the aforesaid judgment, Apex Court has laid down that vehicle be given temporarily to the person who is having registration certificate till conclusion of the trial. The said direction came to be passed while keeping in view the mandate of Section 451 of Central Code which corresponds to Section 516-A of the Jammu & Kashmir Code. Section 516-A of the Code is not applicable to the facts of the case but it is Section 457 of the Central Code corresponding to Section 517 of the Jammu & Kashmir Code which is applicable and the same read as under:
517. Order for disposal of property regarding which offence committed.(1) When an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
(2) When the High Court or a Court of Session makes such order and cannot through its own officers conveniently deliver the property to the person entitled thereto, such Court may direct that the order be carried into effect by the District Magistrate.
(3) When an order is made under this section such order shall not, except where the property is live-stock or subject to speedy and natural decay, and save as provided by Sub-section (4), be carried out for one month, or, when an appeal is presented, until such appeal has been disposed of.
(4) Nothing in this section shall be deemed to prohibit any Court from delivering any property under the provisions of, Sub-section (1) to any person claiming to be, entitled to the possession thereof, on his executing a bond with or without sureties to the satisfaction of the Court, engaging to restore such property to the Court if the order made under this section is modified or set aside on appeal.
Explanation.In this section term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, any anything acquired by such conversion or exchange, whether immediately or otherwise.
40. Thus, the Judgment relied upon by learned Counsel for petitioner is not applicable in this case.
41. The possession of the accused was not un-lawful at the time vehicle was seized, thus cannot be deprived of the possession of vehicle in question. This Court in case titled as Shanti Devi v. State reported in 1987 SLJ 131, para-4 has held as under:
4. In this case the approach adopted by the Courts below is contrary to the provisions of law as contained in Chapter XLIII of the Criminal Procedure Code dealing with the disposal of the property regarding which offence is alleged to have been committed. Section 516-A Cr.P.C. provides that the Court has the power to make such orders as it thinks fit for the proper custody of the property pending the conclusion of inquiry or trial and has not to decide the title of the parties with respect to the said property. The Court has no jurisdiction to investigate and decide the question of title or ownership of the rival claimants to the property. Only the question of possession of the property at the time the case started, has to be gone-into and decided before passing an order for the custody under that section. Even in cases where the custody of the motor vehicle is to be decided it is not for the Court to enter in to the question of title but it is the duty of the Court Magistrate to expeditiously decide as to why is prima-facie entitled to possession of the vehicle. Generally the property is necessarily to be returned to one who is entitled to its possession at the time of the recovery of the vehicle and has not committed any offence in respect thereof to make its possession unlawful. The fact of registration is only relevant for inquiry into the title which not the scope of Section 516-A, Cr.P.C. A registered owner under specified circumstances may be entitled to the interim custody or possession of the vehicle but this principle cannot universally be applied in all the cases. Where the facts and circumstances show "betrayals of confidence and deceptions" in the world of business, the Court is not helpless in granting the appropriate relief to the aggrieved party by giving him the interim custody of the vehicle seized, where it is proved that the motor vehicle was sold by one person to another after receiving money with the transfer of possession of the vehicle but only transfer of registration under the Motor Vehicle Act was not effected and subsequently the vehicle was stolen by its original owner, the Court should normally deliver the custody of the vehicle to the purchaser and not to the dishonest seller. The transfer of the vehicle does not require the execution of any formal sale deed as the same is covered under the provisions of Sales of Goods Act. As and when the possession is delivered to the prospective purchaser for consideration paid in whole or in part, the transaction of sale is complete and it cannot be held on the ground of technicalities that as the registration papers were not signed, the title has not passed to the purchaser. Section 31 of the Motor Vehicle Act casts an obligation on the transferee to report to the vehicle along with the certificate or registration and get the registration transferred in his name. None of the parties can re-treat from the transaction once the possession of the vehicle is transferred by means of any name and challenge the transaction of the sale . The mere fact that the registration was not effected in favour of the purchaser would not mean that the transfer of the vehicle was not complete. I am fortified in this view by a Full Bench Judgment of Andhra Pradesh High Court reported as , wherein it was held:
On the first question we refer Sections 22 and 31 of the Motor Vehicle Act 4 of 1939 (hereinafter called Act) No doubt, those provisions enjoin both on the transferor and transferee to report the factum of transfer of the vehicle to the registering authority and the owner is required to register the vehicle. We are not persuaded to hold on a careful reading of the said provisions that the transfer is complete till the registration is effected in favour of the purchaser. The transfer of vehicle is governed by the provisions of sale of Goods Act. In the absence of any agreement to the contrary payment of price, and delivery of vehicle make the sale complete, and a little passes to the purchaser. The obligation to register the vehicle is for the purposes of controlling and regulating the movement of vehicle by the authorities under the Act and they do not stand in the way of passing title to the purchaser. This is the view taken by the Supreme Court in Pana Lal v. Chand Mal AIR 1989 SC 871 and hence it is necessary to go into further debate on this question and accordingly we reject this contention.
42. It is not necessary that in order to affect transfer of the vehicle sale deed is to be executed. The sale is complete when consideration is paid in whole or In part coupled with delivery of the possession.
43. Applying the test to the instant case, as per conclusion of the enquiry, it was seized from possession of the respondent and petitioner/complainant had sold it in lieu of Rs. 1.20 lakhs.
44. In the given circumstances, accused is entitled to possession.
45. Bombay High Court in case Jagannath Bapu Shirsat v. State of Maharashtra reported in 2000 Cri LJ 4224, has held as under:
11. At the costs of repetition, I would like to mention that under Section 457 of Criminal Procedure Code, the Magistrate is required to consider the better right to possess the property. The Magistrate is not required to decide the question of title. The learned Magistrate has come to a wrong conclusion that the contentions of the respondent No. 2 cannot be considered because of his involvement in the criminal case of theft of the vehicle. He has observed in para No. 10 of his order that a crime under Section 379 of Indian Penal Code has been registered against the respondent No. 2 by Pathardi Police and, therefore, his claim over the subject-matter of theft cannot be considered. The learned Judicial Magistrate should have considered the implications of sale transaction of the vehicle. He ought to have considered the documents placed on record by the respondent No. 2. The conclusions drawn by the Judicial Magistrate, First Class, Pathardi are patently erroneous. Irrespective of registration of crime against the respondent No. 2, the Judicial Magistrate First Class, Pathardi was expected to fund out whether respondent No. 2 is possessed of better right over the custody of the vehicle. The respondent No. 2 is bona fide purchase for value before commission of offence of theft. He should not have refused to consider the contention raised by the respondent No. 2 in respect of transfer of vehicle. Because of erroneous order with regard to custody, the foul play perpetrated by the petitioner is honoured and respected.
12. Under the circumstances, the order passed by the Judicial Magistrate, First Class, Pathardi with regard to handing over custody of the vehicle to the petitioner has been rightly set aside by the learned Additional Sessions Judge, Ahmednagar. The learned Additional Sessions Judge, Ahmednagar has elaborately discussed the plea of respondent No. 2 and has rightly concluded that the general rule with regard to handling over custody to the registered owner is not applicable to each and every case and if it is found that the opposite party has better right to possess the property, the general rule can be deviated and the custody of the vehicle can legitimately be delivered to the rival claimant.
13. Taking into consideration the entire record placed on record, it is clear that the respondent No. 2 has better right to possess the vehicle. Under the circumstances, the custody of the vehicle must go to the respondent No. 2.
46. Applying the test to the instant case, the vehicle was rightly released in favour of the person from whose possession it was seized.
47. In the given circumstances, this revision merits to be dismissed.
48. Accordingly, this revision petition is dismissed. Any observation made by the trial Court or by this Court shall not prejudice the rights of the parties in any way and shall not come in the way of petitioner in seeking remedy provided under law.