Himachal Pradesh High Court
Vijay Vishal vs Inder Singh Kaundal And Anr. on 12 January, 2001
Equivalent citations: 2002CRILJ1177
ORDER Kamlesh Sharma, J.
1. In this petition the petitioner has invoked the powers of this Court under Section 482, Code of Criminal Procedure, and under Article 227 of the Constitution of India to assail the order dated 1-12-1998 passed by Sessions Judge, Shimla, whereby the Criminal Revision of respondent No. 1 was allowed and the order dated 17-9-1998 of Judicial Magistrate, 1st Class (2), Shimla, was set aside and the vehicle bearing No. HP-01-0926 was ordered to be delivered to him. The Judicial Magistrate, 1st Class by his order dated 17-9-1998 had released the said vehicle in favour of the petitioner under conditions given in the order.
2. It is not in dispute that the petitioner is the registered owner of the vehicle No. HP-01-0926 and he had sold it to respondent No. 1 for a consideration of Rs. 1,10,997/-vide agreement dated 29-3-1997. An amount of Rs. 44,000/- was paid to the petitioner and balance amount of Rs. 66,997/- was to be paid to the Canara Bank, The Mall, Shimla in the loan account of the petitioner by way of instalment of the loan as already fixed by the Bank. The possession of the vehicle was handed over to respondent No. 1 and he got a right to ply the said vehicle in lawful manner. However, the parties agreed that if respondent No. 1 failed to pay the instalment of loan to the bank regularly and in case of continuous default of any four instalments the petitioner would have a right to take back the vehicle and the amount already paid would be forfeited. It is not in dispute that the monthly instalment of loan was of Rs. 3,500/-.
3. The case of the petitioner is that respondent No. 1 committed default in making payment of four instalments for the months of April, May, June and July, 1998 and he took over possession of the vehicle on 3-9-1998.
4. It is not in dispute that on the report of respondent No. 1 FIR 172 of 1998 was registered against the petitioner in Police Station, Dhalli, under Section 379, I.P.C. for the theft of the vehicle and during the investigation the police seized the vehicle from the mother of the petitioner who holds general attorney on his behalf. Thereafter, the petitioner filed an application under Section 452, Code of Criminal Procedure, before Judicial Magistrate, 1st Class (2), Shimla, for the release of the vehicle which was allowed by the order dated 17-9-1998 without giving notice to respondent No. 1, though in its report the police did make mention that the vehicle stood sold to him by the agreement dated 29-3-1997 and he had paid an amount of Rs. 1,12,928/-against the sale consideration of Rs. 1,10,997/-. The police had opposed the release of the vehicle in favour of the petitioner on the ground that it would hamper their investigation. According to the police, in the facts and circumstances on record the Sapurdari of the vehicle was required to be given to respondent No. 1. Despite the police report the Judicial Magistrate, 1st Class had released the vehicle to the petitioner solely on the ground that he is registered owner of the vehicle and the police had not mentioned in its report that the possession of the vehicle was given to respondent No. 1 which is factually incorrect as the very basis of lodging F.I.R. was that respondent No. 1 was plying the vehicle as taxi and on the day of occurrence, i.e., 3-9-1998 he had taken passengers in the vehicle in question to Naldehra and had parked it on the road side to accompany the passengers to Naldehra ground that when he came back he found the vehicle stolen and on search he learnt that it was lifted and stolen by the mother and general attorney of the petitioner who refused to hand it over despite the request of respondent No. 1. Feeling aggrieved respondent No. 1 filed revision petition in the Court of Sessions Judge, Shimla, which has been allowed by the impugned order and the same is under challenge in the present petition.
5. After the order dated 1-12-1998 passed by the Sessions Judge directing the delivery of the vehicle to respondent No. 1, he moved an application in the Court of Judicial Magistrate, 1st Class to direct the petitioner to hand over the vehicle to him. Despite the resistance by the petitioner the said application was allowed on 19-1-1999 keeping in view the order dated 1-12-1998 passed by the Sessions Judge and the petitioner was directed to produce the vehicle in the Court for handing over its Sapurdari to respondent No. 1. The petitioner did not comply with the order and took further adjournments on one pretext or the other. In the meantime, he filed Cr. M.M.C. No. 9 of 1999 in this Court in which interim order dated 18-2-1999 was passed staying the operation of the order dated 19-1-1999. Ultimately the said petition was allowed on 26-2-1999 and status quo as on that date was ordered with regard to the custody of the vehicle during the pendency of the petition (Cr. M.P. (M) No. 987 of 1998) and the order dated 19-1-1999 of Judicial Magistrate, 1st Class (2), Shimla was set aside.
6. This Court has heard learned Counsel for the parties and gone through the record.
7. The order dated 17-9-1998 was passed by the Judicial Magistrate, 1st Class (2) handing over the custody of the vehicle in question under Section 457, Code of Criminal Procedure. Section 457 is :
457. Procedure by police upon seizure of property.-- (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 per-' son who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.
8. From this provision it is clear that the trial Magistrate is to make such order as he thinks fit in respect of disposal or delivery of the property seized by the police and the person entitled to the possession thereof. In other words, the Magistrate has to exercise judicial discretion by holding enquiry of summary nature with a view to determine as to who is the person 'entitled to the possession of the property'.
9. Two of the prime relevant considerations which may weigh with the Magistrate are that from whose custody the property was seized by the police and that who was the owner thereof. The Courts have taken the view that possession of the vehicle should be given to the registered owner may be for the reason that the registration is the best evidence of ownership in a summary enquiry. But if there is evidence on record that registered owner has sold the vehicle by some agreement and handed over the possession thereof, the Magistrate must consider the said agreement and also its effect in respect of the ownership of the vehicle in order to determine as to who is the person entitled to the possession thereof. Learned single Judge of this Court in Sardara Singh v. Nur Ahmed, 1992 (1) SLC 334, has taken this view after considering various judgments of High Courts.
10. In M/s. Shriram Transport Finance Co. Ltd. v. Shri R. Khaishiulla Khan, 1993 Cri LJ 1069, the Division Bench of Karnataka High Court had given interim custody of seized vehicle to the financier as the seizure was on the hirer's committing default in payment of instalments stipulated under the hire purchase agreement though the registration certificate was in the name of the hirer and he was in possession of the vehicle in pursuance of the hire purchase agreement, but he was not considered absolute owner having all the proprietary rights therein, by invoking Section 2(30) of the Motor Vehicles Act. It was held that absolute ownership of the vehicle will pass to him when all conditions in the agreement are fulfilled or he opts to purchase the vehicle outright. Same view was taken by the Gauhati High Court in Manoj Kumar Sharma v. Sadhan Roy, 1993 Cri LJ 2484.
11. It is correct that in the summary enquiry the Magistrate is not to adjudicate or to decide as to which party is the owner of the vehicle but in order to find out who is the best person entitled to possession thereof, prima facie, ownership of the vehicle is one of the considerations. There is no dispute that intricate question of ownership of the property is the domain of civil Court.
12. In Beni Dan v. Laxmichand, 1996 Cri LJ 1191, the learned Judge of Rajasthan High Court in the context of Sections 451 and 452, Code of Criminal Procedure, under which provisions also the Magistrate is to decide who is the best person for the custody and disposal of the property pending trial and at the conclusion of the trial, respectively, has held in para 15 that :
...It is also true that interim custody under Section 451, Cr. P.C. of the motor vehicle should generally be given to registered owner for use in the public road and that a heavy burden lies on a person, who claims that such vehicle has been sold to him or that he has superior claim, but there cannot be any inflexible rule that under Section 452, Cr. P.C. the vehicle should be invariably returned to its registered owner. On the other hand, the Court while passing an order under Section 452, Cr. P.C. should find out as to who is the best person entitled to possession of such property.
13. Learned Counsel for the petitioner has relied upon the judgment of Supreme Court in Manipal Finance Corpn. Ltd. v. T. Bangarappa, 1994 Supp (1) SCC 507, in which possession of the vehicle was restored to the financier from the hire purchaser on the failure of the hire purchaser to pay the instalments and on his committing successive defaults, the financier took possession of the vehicle under the terms of the hire purchase agreement, but on the hire purchaser lodging a complaint of theft against two employees of the financier, the police took charge of the vehicle and produced the same before the Magistrate, who handed over the custody of the vehicle to the hire-purchaser on his executing an indemnity bond in the sum of Rs. 80,000/- with one surety of like amount and directed the financier to have the question of right determined by a civil court. The learned Judges set aside the order of the Magistrate and held that without making good the charge of theft the hire-purchaser by using the State instrumentality, namely, the police, obtained possession of the vehicle and thereafter obtained its custody through the order of the Magistrate.
14. The ratio of this judgment is not applicable to the facts of the present case in view of the clear findings of the Sessions Judge that respondent No. 1 was not the defaulter under the sale agreement. Learned Counsel for the petitioner has vehemently urged that these findings of the Sessions Judge are erroneous and these may be set aside forgetting that he has invoked the jurisdiction of this Court under Section 482, Code of Criminal Procedure, and this Court is not supposed to re-appreciate the documents material on record to arrive at a different conclusion.
15. The ratio of the other judgments, namely, Neeraj Kumar Agarwal v. State of U. P., 1992 Cri LJ 1247 of Allahabad High Court and Sikander Beg v. State of Rajasthan, 1993 Cri LJ 1114 of Rajasthan High Court, cited by the learned Counsel for the petitioner is also not applicable in view of the findings of fact arrived at by the Sessions Judge that the vehicle in question stood sold by sale agreement and sale consideration paid in accordance with terms and conditions thereof. It is also held that the possession of the vehicle was also handed over immediately after the execution of the sale agreement. In view of these findings it is not material that the registration certificate continues to be in the name of the petitioner.
16. So far F.I.R. lodged by respondent No. 1 for the theft of the vehicle is concerned, it will be investigated and tried in accordance with law and trial Court will be at liberty to pass appropriate order on the conclusion of the trial under Section 452, Code of Criminal Procedure, and any observation made in this order will not affect either the investigation or the trial or the final order.
17. In the result, the present petition is dismissed having no merit. No order as to costs.