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1966 DIGILAW 53 (ALL)

Sita Ram v. Bhagat Singh

1966-02-02

D.P.UNIYAL

body1966
JUDGMENT D.P. Uniyal, J. - This is a criminal reference by the learned Sessions Judge, Etawah recommending that the order of the Judicial Magistrate dated August 21, 1965 be quashed and suitable orders passed. 2. The facts leading to the present reference are these. On May 11, 1965 one Sita Ram entrusted certain goods worth Rs. 7,500/- to Hira Lal Tewari through a transport agency, of which Kailash Narain and Habib are alleged to be partners. The goods were being transported from Jaswantnagar (Etawah) to Allahabad. When the goods did not reach Allahabad a report was lodged by Sita Ram on May 23, 1965 against Hira Lal, Kailash Narain & Habib alleging that they had misappropriated the goods. During the investigation of the case the police seized, truck No. UPI 6270 on July 26, 1985 from the possession of one Siddiqi who was found driving the truck. On July 29, 1965 an application was made by Hira Lal, Siddiqi and Bhagat Singh to the Judicial Magistrate, Etawah for release of the truck. Objections were filed by Sita Ram complainant on July 30, 1965, but the Magistrate, rejected the application on August 6, 1965, as no one appeared to support the application. On August 13, 1965 a second application was made by Bhagat Singh for release of the truck. Thereupon the Magistrate passed an order dated August 21, 1965, under Section 516A Cr.P.C. directing the release of the truck in favour of Bhagat Singh. Against this order Sita Ram preferred a revision before the learned Sessions Judge who has made the above reference to this Court. 3. The report lodged by Sita Ram under Section 406 I.P.C. was under investigation when the truck in question was seized by the police on July 26, 1965 from the possession of one Siddiqi. The order of release in favour of Bhagat Singh by the Magistrate had been made under Section 516-A Cr.P.C. That section provides that a Magistrate may pass suitable orders regarding custody of the property seized by the police "during any enquiry or trial" in a criminal case. At the time when the truck was seized by the police in the instant case there was no enquiry or trial pending before a Magistrate, and, as such the provisions of Section 516-A could have no application. At the time when the truck was seized by the police in the instant case there was no enquiry or trial pending before a Magistrate, and, as such the provisions of Section 516-A could have no application. The Magistrate had, therefore, no jurisdiction to pass an order releasing the truck in favour of Bhagat Singh under that section. 4. Under the Code the police has power to seize property from an accused person under Section 51 Cr.P.C. It may also take possession of property during search under the provisions of Section 165, if the police officer making the investigation has reasonable ground for believing that the custody of the property is necessary for the purposes of investigation into any offence. Similarly, the police has power to seize any property suspected to have been stolen or which may be found in circumstances which create suspicion of the commission of any offence. Neither Section 51 nor Section 550 has application to the present case because Siddiqi, who was driving the truck at the time of the seizure, was not a person accused of the offence that was being investigated by the police. It is nobodys case that the truck was stolen property or that the goods which Siddiqi was carrying in the truck at the time of its seizure was stolen property. The only other section under which the truck could have been taken into custody by the police is Section 165. That section empowers the police to conduct search and take in its custody any property for purposes of investigation into any offence. It may therefore be said that the police could have taken the truck into its possession under Section 165 as the report made under Section 406 clearly recited that the said truck had been used in misappropriating certain goods by the accused persons. 5. The question that falls to be determined, however, is whether the order of the Magistrate releasing the truck in favour of Bhagat Singh can be justified under Section 516-A Cr.P.C. I have already said above that Section 516-A is not attracted to the case. It remains to consider, however, if the court has power under Section 523 to make an order, for releasing the truck. It remains to consider, however, if the court has power under Section 523 to make an order, for releasing the truck. The language of that section clearly goes to show that if the property is seized under Section 51 or under Section 550 of the Code then, and then only, the Magistrate would have jurisdiction to make an order under that section. It follows that the Magistrate had no power to order release of the truck under Section 523. 6. On the facts which are undisputed, Hira Lal is the registered owner of the truck. He had obtained it under a hire purchase agreement from a firm entitled Auto Sales. Under the said agreement Hira Lal was to remain in possession as a bailee and was to use the truck for purposes of his transport business. Bhagat Singh has no title to the truck. He is said to have been managing the transport business on behalf of Hira Lal. In this Court an application under Section 561-A was moved by M/s. Auto Sales claiming to be put in possession of the truck and praying for its release in their favour. In the affidavit filed in support of the application by M/s. Auto Sales it was stated that Hira Lal had paid only Rs. 7,000/- and odd towards the hire purchase and that the balance of Rs. 9,000/- was owing by him to the firm; that under the terms of the hire purchase agreement M/s. Auto Sales were entitled to determine the contract upon Hira Lal committing default of any one of the instalments. It was contended that the proper person to whom custody of the truck might be given was M/s. Auto Sales and not Hira Lal or Bhagat Singh. On behalf of Hira Lal, on the other hand, it was urged that he has a legal right to retain possession of the truck, so long as the agreement under which he took possession was not determined in accordance with law or by a decree of the Civil Court. 7. It would thus appear that there is a contest between M/s. Auto Sales on the one hand and Hira Lal on the other as to the custody of the truck. The question is one which cannot be decided in a summary proceeding by the criminal court. It is a matter which affects the civil rights of the parties. 7. It would thus appear that there is a contest between M/s. Auto Sales on the one hand and Hira Lal on the other as to the custody of the truck. The question is one which cannot be decided in a summary proceeding by the criminal court. It is a matter which affects the civil rights of the parties. A criminal court is not the proper forum to decide legal title or to determine rights of parties. It is only concerned with the question as to who is the best person to remain in possession of the property seized by the police. Admittedly, Hira Lal is the registered owner of the truck and has been in lawful possession of it on the date of its seizure. Under the circumstances he is the best person in whose favour the truck in question may be released. 8. I therefore accept the reference made by the learned Sessions Judge and quash the order of the Magistrate dated August 21, 1965 and direct that truck No. UPI 6270 seized by Jaswantnagar police on July 26, 1965 shall be released in favour of Hira Lal on his furnishing a personal bond of Rs. 40,000/- and two sureties of the like amount, within a period of one month. He shall produce the truck if and when required by the Court in connection with the Criminal case under Section 406 I.P.C. pending against Hira Lal and others.