Judgment ANANT SINGH, J. 1. This application has been filed by Messrs. Autolite Financiers (Private) Ltd., Delhi, through its Chairman for a writ under Articles 226 and 227 of the Constitution of India, but we have treated it as an application in revision in the circumstances as will appear hereafter. 2. The application has been filed against an order dated the 38th May, 1963 of a Magistrate, Sri S.N. Pandey 1st Class of Dhanbad at Baghmara, whereby he has released and handed over a truck bearing No. B. R. J. 1823 in favour of opposite-party No. 1, Messrs. Swastik Financial Corporation, Ltd., New Delhi, on furnishing a surety bond for Rs. 30,000, on condition that the truck would be produced in Court as and when required. 3. It appears that on the 6th May, 1963, one Kishun Kumnar Singh claiming himself to be the driver of the truck in question on behalf of opposite party No. 3, lodged a first information report before the Katras Police station alleging that he was driving the truck on behalf of his master, opposite party No. 3 when in the morning of the same date his truck was forcibly taken away by duping him by some persons, who had gone along on the truck and by some persons following in a car bearing No. B. R. R. 9310. The names of the persons taking away the truck were, however, not known to the driver. . . A case under Ss. 379 and 147, Indian Penal Code was duly registered, in the police station at Katras and the case was pending investigation by the police. On the fame date, that is, the 6th May, 1963 one Om Prakash, calling himself the manager of opposite party No. 1. Messrs. Swastik Financial Corporation (Private) Ltd., New Delhi, deposited the same truck at Baghmara police station with certain allegations the contents of which are, however, not on the record. 4. On the 13th May, 1963 an application was filed in the Court of the Sub Divisional Magistrate, Dhanbad, by opposite party No. 3 and on behalf of the present petitioner for release of the vehicle in question in their favour with an averment that opposite party No. 3 was the hirer in respect of the vehicle under the petitioner on hire purchase system. Next day, that is, on the 14th May, 1963 an application was filed on behalf of opposite party No. 1 through Om Prakash asking for release of the vehicle in favour of opposite party No. 1 with an averment that opposite party No. 1 was "the owner of the aforesaid vehicle which was under hire purchase agreement with the said company", though the name of the hirer of the vehicle was not disclosed in the petition. The petition further disclosed that the hirer did not pay any instalment to opposite party No. 1 since the day of agreement, and, therefore, opposite party No. 1 "re-took possession of the vehicle on 6th May, 1963 and to avoid complication he surrendered the vehicle to Police Station Baghmara on the said relay." The Subdivisional Magistrate called for a report from the police on the petitions filed jointly on behalf of the present petitioner and opposite party No. 3 as also on the petition filed on behalf of opposite party No. 1. 5. The officer in charge of the Katras Police Station submitted a report on the 15th May, 1963. saying that the truck was an exhibit in a theft case registered on the 6th May, 1963, and that the appellants, meaning the present petitioner and opposite party No. 8, were the real owners of the truck and that it could be released to them on taking a bond for Rs. 50,000/- for the production of the truck when called for by the Court. 6. The learned Magistrate by the impugned order considered the claims of the parties, and after referring to the various documents adduced by the parties in support of their respective claims has found; "Materials and documents, therefore, very consistently support Swastil Financial Corporation (P) Ltd.s claim over the buck in question" and, therefore, he made an order for its release in favour of opposite party No. 1. 7. It is contended on behalf of the petitioner that the learned Magistrate did not at all take into consideration the question of actual possession of the truck by either party but has manifestly exceeded his jurisdiction in deciding the issue on the basis on title and ownership of the truck, and in doing that also he has freely drawn upon his pure imagination divorced from actual facts. The contention of the petitioner seems to be well founded. 8. The contention of the petitioner seems to be well founded. 8. The learned Magistrate has gone into the history of the ownership of the truck ever since it was at first allotted to Gian Singh and Harcharan Singh by Tata Mercedes through its agent Auto Sales, Allahabad, sometime in February, 1962. It appears that one Messrs. Hariyana Finance (Private) Ltd. paid as financiers the price for the truck to Auto Sales on behalf of Gian Singh and Harcharan Singh. The vehicle was registered then as U. P. C. 8131. 9. It appears, however, that it is the admitted position that one Sri Kishanlal Jaggi of Nayabazar Delhi was the real hirer or purchaser of the truck instead of Gian Singh and Harcharan Singh as they confirmed in their letter (annexure-13) which they addressed to Hariyana Finance (P) Ltd. on the 10th February, 1962, Thus Kishanlal Jaggi became the real hirer of the vehicle under Messrs. Hariyana Finance (P) Ltd. 10. The petitioners case is that Sri Kishanlal Jaggi could not pay the instalments due to Messrs. Hariyana Finance (P) Ltd. and hence the petitioner paid to them on behalf of Kishanlal Jaggi the full price of the truck being Rs. 34,500/- and Kishanlal Jaggi also acknowledged a receipt dated the 22nd October, 1962 which is annexure-8. It is said that ever since Kishanlal Jaggi ceased to be either the hirer or owner of the truck and the ownership was transferred to the petitioner who is its turn, let out the truck on hire-purchase system to opposite party No. 3 by an agreement dated the 22nd October, 1962. The truck was duly registered in the name of opposite party No. 3 as the hirer under the petitioner as the financier owner. The registration was effected by the registering authority at Bhagalpur under a certificate of registration on the 7th November, 1992 in the name of opposite party No. 3, vide annexure-4. A public carriers permit (annexure-5) was also issued in the name of opposite party No. 3 on the 21st December, 1962 valid for five years expiring on the 21st December, 1957 (sic). A certificate of insurance (Annexure-6) was also taken out in the name of opposite party No. 3 under the care of the petitioner on the 23rd January, 1933 with the Oriental Fire and General Insurance Co. Ltd. 11. A certificate of insurance (Annexure-6) was also taken out in the name of opposite party No. 3 under the care of the petitioner on the 23rd January, 1933 with the Oriental Fire and General Insurance Co. Ltd. 11. The case of opposite party No. 1 as made out before us in paragraph 11(a) of its counter affidavit is that on the representation of Sri Kishanlal Jaggi that he was the owner of the truck in question and if was free from all encumbrance, opposite party No. 1 purchased it from him under a receipt dated the 20th February, 1982, the consideration being Rs. 34,177/- as per Annexure-A. The further case of opposite party No. 1 which is somewhat inconsistent is that on receipt of payment of Rs. 34,177/- Sri Kishanlal Jaggi entered into a hire purchase agreement with it (opposite party No. 1) on the 9th April, 1962 as per agreement (Annexure-B). Later, opposite party No. 1 having purchased the vehicle from the aforesaid Sri Kishanlal Jaggi got the vehicle insured with Messrs. New India Assurance Company Ltd. us per Annexure-C. Thereafter opposite party No. 1 got a form signed by Sri Kishanlal Jaggi for the purpose of filing the same before the registering authority for having an endorsement of hire purchase made in the registration book but no registration appears to have been made of the vehicle either in the name of opposite party No. 1 or in the name of Sri Kishanlal Jaggi at any time though is the beginning, the vehicle was registered for a few days in the name of the original allottees Gian Singh and Harcharan Singh. 12. The further case of opposite party No. 1 is that Sri Kishanlal Jaggi defaulted in the payment of a number of instalments due till the 10th November, 1982, and a cheque he bad given for Rs 12,384/- on the 11th January, 1962 was dishonoured. 12. The further case of opposite party No. 1 is that Sri Kishanlal Jaggi defaulted in the payment of a number of instalments due till the 10th November, 1982, and a cheque he bad given for Rs 12,384/- on the 11th January, 1962 was dishonoured. "It seems" so is the allegation of opposite party No. 1 "Kishanlal Jaggi with a view to escape the liability to opposite party No. 1 stealthily took the vehicle to Bhagalpur and caused it transferred in the name of opposite party No. 3 on false (sic) and misrepresentation of fact." It is further said: "Opposite party No. 1 having thus been deceived and cheated at the hands of the said Kishanlal Jaggi filed a complaint in the Court of a First Class Magistrate, Delhi, against the said Kishanlal Jaggi and his trial is pending" It is further alleged : "Ultimately the opposite party No. 1 having suspected a foul play sent out its officers to trace out the vehicle when it was found in possession of Kishanlal Jaggi at Nawagarh and under the terms of the agreement possession thereof was taken and then it was deposited before Baghmara Police Station." 13. The petitioner claims to be the financier and thereby the owner of the vehicle and opposite party No. 3 claims to be the hirer of the vehicle under the petitioner, where as opposite party No. 1 claims to be the owner and financier with Kishanlal Jaggi has its hirer under it admitting, however, at the same time that Kishanlal Jaggi seems to have played foul with opposite party No. 1 and fraudulently transferred the vehicle in the name of opposite party No. 3 in whose name the certificate of registration and the road permit, as referred to above stand. The learned Magistrate without any jurisdiction vested in him took upon himself burden of deciding the question of respective claims for ownership to the vehicle and did not consider at all who was in actual possession of the vehicle when the first information report was filed by the driver of the opposite party No. 3 or when the vehicle was deposited by Om Prakash on behalf of the opposite party No. 1. After drawing fully upon his imagination, while judging the question, of ownership as distinct from the question of possession, the learned Magistrate has not at all taken into consideration at least the certificate of registration and road permit, referred to above, and while referring to the certificate of registration and an attested copy of the agreement between Hariyana Finance Corporation and Kishanlal Jaggi he "dropped" them from consideration altogether in view of the analysis of facts as he called them, I wonder what facts were there to outweigh the prima facie value of at least the certificate of registration and the road permit in the name of opposite party No. 3 as against no certificate of registration and road permit either in the name of Kishanlal Jaggi or opposite party No. 1. The certificates of registration and road permits issued by the State authorities of Bihar in pursuance of the rules framed under the Motor Vehicles Act have a presumption that the holder of the certificate and the road permit was in possession of the vehicle. As regards the question of title or ownership, the learned Magistrate had no jurisdiction to decide it in a proceeding like the present one. 14. It is under Chapter XLIII of the Code of Criminal Procedure that a Magistrate is authorised to decide the question as to the claim of a person regarding the release of any property placed in custody of the Court. Section 516A provides as follow : "When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, 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 or natural dacay 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." Section 517 provides for the disposal of any property after the conclusion of any inquiry or trial. The provisions of Sections 518 to 522, 524 and 525 appearing under Chapter XLIII are not relevant. The provisions of Sections 518 to 522, 524 and 525 appearing under Chapter XLIII are not relevant. Section 523 deals with the question of disposal of any property seized by any police officer under Section 51 of stolen property etc. 15. Manifestly the provisions of S. 517 or 523 are not attracted to the instant case since the vehicle was not seized by the police either under Section 51 or as a stolen properly. There was only a complaint of theft of the vehicle made on behalf of opposite party No. 3 through his driver and the case was pending investigation by the police and it was not yet concluded. Thus provisions of Section 517 were also not attracted. 16. The Magistrate could deal with the question of the release of the vehicle in favour of either party only under the provision; of Section 516A since an allegation of an offence of theft hid been made with regard to it and there cropped up rival claimants for it. The Magistrate only had jurisdiction to make such order for its custody as he thought fit for the duration of the enquiry or trial of the case, but for this he had no jurisdiction to have embarked upon an investigation of title of rival claimants to the vehicle, and it was all the more unfair when he decided the whole issue bearing on the title only and not on possession when the theft case filed on behalf of opposite party No. 3 was still pending investigation. I understand that a final report was submitted by the police in the aforesaid case with an opinion that it was more a case of civil dispute. This final report came after the order of the Magistrate and I shall not be surprised that the police were influenced by the order of the learned Magistrate, which was wholly without jurisdiction, since the learned Magistrate had no jurisdiction to have decided the question of title or ownership of the truck. 17. Mr. This final report came after the order of the Magistrate and I shall not be surprised that the police were influenced by the order of the learned Magistrate, which was wholly without jurisdiction, since the learned Magistrate had no jurisdiction to have decided the question of title or ownership of the truck. 17. Mr. Nageshwar Prasad, appearing for opposite party No. 1 has, however, contended that regard being had to the provisions of Sections 516A, the learned Magistrate had jurisdiction to make an order for the custody of the vehicle in any manner as he thought fit, and if he gave the vehicle to opposite party No. 1 on taking sufficient security, the operative portion of his order could not be said to be without jurisdiction. The contention could be all right if the learned Magistrate had passed the operative order without having at first decided the question of ownership. There can be no manner of doubt that the operative portion of the order that he came to pass was the outcome of his finding regarding ownership, and the same being without jurisdiction, the operative order that he has passed must also be deemed to have been passed without jurisdiction. The whole order of the learned Magistrate therefore should be quashed and set aside. 18. Mr. Nageshwar Prasad has further contended that an application under Articles 226 and 227 of the Constitution of India would not lie since the petitioner has his remedy otherwise and the matters being controversial cannot be decided in a writ application. I quite agree that a write application is not appropriate but we have treated the application as one in revision under Sections 435 and 439 of the Code of Criminal Procedure. The learned Magistrate obviously purported to act under Section 516A of the Code of Criminal Procedure and that being not appealable an application in revision would certainly lie if the order passed is without jurisdiction as it is in the present case as I have already pointed out, or is manifestly unjust and illegal as also it is to the instant case. 19. The next question for consideration is, what would be the proper order regarding the release of the vehicle. The ordinary principle for dealing with any property as in the present case is, to return it to the person from whom, possession is taken by the authority. 19. The next question for consideration is, what would be the proper order regarding the release of the vehicle. The ordinary principle for dealing with any property as in the present case is, to return it to the person from whom, possession is taken by the authority. It was held by Rankin C.J. and Costello, J. of the Calcutta High Court in Brojendra Chandra Dev. K.S. Sama, 35 Cal WN 198 : (AIR 1931 Cal 455) quoting from the placitum : "When a complaint is made of theft regarding a property which at the time is in the possession of the person complained against, an order may be made under Section 516A for the production of the property and its temporary custody with the complainant. But it after the complainant has thus got back the property it appears that he has abandoned further pursuit of his complaint and that his whole object was not the investigation into any criminal offence but recovery of the property, the proper order to make under Section 517 is to hand over the property back to the person with whom it was. It is utterly wrong to let it remain with the complainant which is assisting him in abusing the criminal Court for purposes which could only be achieved by a successful civil action". The same principle would govern the disposal of the property even under Section 516A for it is only just and proper that the person who is in actual possession of a properly at the time a case is started must get it for the duration of the inquiry or trial ii it becomes necessary to so release it during the pendency of the case. It would otherwise be wholly unjust it a person is given property on the basis of a preferential title a matter which can be properly adjudicated only by a civil Court, for the person getting the property may sit tight and not seek his remedy in the civil Court, knowing that he has the advantage of the property being in possession. 20 A similar view was taken by Horwill, J. in Nalluswami Reddi v. Nallammal, AIR 1943 Mad 392 wherein it was held that is a case of a competing claim to any property which cannot be satisfactorily decided by a criminal Court, the property, it taken by violence by one person under the colour of a civil claim should ordinarily be returned to the person from whom it was taken by violence or otherwise ; otherwise, as his Lordship said, Criminal Courts would be encouraging persons to take the law into their own hands, break into other persons house and take property from it under colour of a right which they might not in fact possess". The principle is as quite wholesome as sound that criminal Court, having no jurisdiction to adjudicate on the question of title, should return the property to the person from whom it was taken and if it was taken by another by use of force or by practising deceit, it should be again returned to the same person from whom it was taken by violence or deceit otherwise people will be encouraged to take the law into their own hands which no Court of justice can tolerate. 21. The question for our consideration in this case is, who was actually in possession of the vehicle when the complaint had been lodged on behalf of opposite party No. 3 or when on the same date, the vehicle was deposited by Om Prakash of the Company of opposite party No. 1 at Raghmara Police Station. The letter which Om Prakash is said to have handed over at the Baghmara Police Station while depositing the vehicle is not brought on the record to indicate in what circumstances he deposited the vehicle with the police. It is only in the counter affidavit filed before us that it is said that the vehicle was found at Nawagarh in possession of Kishanlal Jaggi. But even according to the case of opposite party No. 1 it had no justification to have seized the truck even from Kishanlal Jaggi for its remedy lay against him in an appropriate Court, if Kishanlal Jaggi had practised fraud upon opposite party No. 1 and illegally transferred the vehicle to opposite party No. 3. But even according to the case of opposite party No. 1 it had no justification to have seized the truck even from Kishanlal Jaggi for its remedy lay against him in an appropriate Court, if Kishanlal Jaggi had practised fraud upon opposite party No. 1 and illegally transferred the vehicle to opposite party No. 3. It is the case of opposite party No. 1 as made out in its counter-affidavit that Kishanlal Jaggi had practised fraud upon it by not paying its instalments and then transferring it to opposite party No. 3. Thus opposite party No. 1, if it seized the vehicle! from the possession of Kishanlal at Nawagarh, supposing the averment is correct, the seizure was illegal and unlawful. Thus, the opposite party No. 1 cannot be said to have been in possession of the vehicle when it was deposited by Om Prakash at Bhagmara police station on the 6th May, 1963. On the other hand, according to the case of the petitioner and that of its hirer, opposite party No. 3, the vehicle stood registered with the transport authority in the name of opposite party No. 3, and prima facie, it must be presumed that opposite party No. 3 was in its possession. A theft case in respect of the vehicle was also instituted on behalf of the opposite party No. 3 through its driver. The case may or may not be true, but on the basis of the certificate of registration read with the road permit, already referred to it must be presumed for the purpose of this case that up to the 6th May, 1963 the vehicle was in possession of opposite party No. 3 through it; driver who lodged the first information report of theft that very day. I am inclined to hold so because under the terms of the certificate of registration and the road permit, it was opposite party No. 3 alone who was entitled to ply the vehicle as a public carrier. Kishanlal Jaggi or as a matter of that opposite party No. 1 had no certificate of registration or road permit and neither of them could have been plying it in its own name. Kishanlal Jaggi or as a matter of that opposite party No. 1 had no certificate of registration or road permit and neither of them could have been plying it in its own name. Kishanlal Jaggi has pat no claim to the vehicle that it was seized from his possession on behalf of opposite party No. 1 who in its turn, has not given the details of the circumstances in which it was seized; who was the driver plying it and how it came to be at Nawagarh. Prima facie, the version of opposite party No. 3 that the vehicle was taken forcible possession of by some unknown persons on the 6th of May, 1963, while the same was being driven by its driver, Kishan Lal Singh, in the manner as alleged in his first information report lodged at Katras Police station appears to be correct, and if the vehicle came to be deposited at Baghmara police station on the same day by Om Prakash of opposite party No. 1 he cannot be said to have been in its lawful possession. There will be presumption that Om Prakash must have been one to have taken possession of the vehicle by violence or deceit or both from the driver of opposite party No. 3 on the 6th of May, 1963 when he was plying it under the road permit and certificate of registration in his masters name. A surrender of the vehicle by Om Prakash at Baghmara police station the same day may have been wisely done as the learned Magistrate would consider it but that by itself would confer no claim on him to possess the truck. A thief can acquire no claim to possess it property only because he surrenders it before the police or in Court. If he had any lawful claim to the property he could enforce it under the due process of law and not take the law in his own hands. A man can he guilty of theft of even his own property when he removes it away dishonestly without the consent of the person who has its lawful possession for the time being. My object is not to indicate whether Om Prakash was or was not the thief of the vehicle and I refrain from expressing any opinion in the matter since it may come up for considerate before the Court. My object is not to indicate whether Om Prakash was or was not the thief of the vehicle and I refrain from expressing any opinion in the matter since it may come up for considerate before the Court. It will suffice to say for the disposal of! this proceeding that the mere fact of Om Prakash depositing the vehicle with the police will not be in the circumstances entitle him or his company to its custody until they have their right established in as appropriate Court. 22. In the circumstances the proper order would be to realise and hand over the vehicle to opposite party No. 3 to which the present petitioner has no objection. To ensure the production of the vehicle by any Court, if and when necessary, and also to ensure to the successful party which may be liable to establish its claim in the appropriate Court, the price of the vehicle and mesne profits resulting, therefrom I think it proper that opposite party No. 3 should furnish a security bond to the tune of Rs. 50,000 as was the security raised by this Court in relation to opposite party No. 1 at the time of admission of this application. The bond must be to the satisfaction of the Subdivisional Magistrate concerned. 23. This order will be substituted for the order of the Learned Magistrate which is set aside. The Vehicle must be produced by oppose party No. 1 in Court within a fortnight from today and it will be released to opposite party No. 3 on the terms indicated above. G.N.PRASAD, J. 24 I agree.