KARIYAPPA v. SREEKANTAIAH — 1980 DIGILAW 68 (KAR)

M. S. PATIL, J. ( 1 ) THIS petition filed under Section 482 Cr. P. C. , is directed against the order dated 1-2-80 passed by the sessions Judge, Mandya, in Cr. R. F. No. 1/80, whereby he set aside the, order dated 17-1 80 passed by the Chief judicial Magistrate, Mandya, in C. C. No. 765/1979 on the file of his Court entrusting the custody of the vehicle myn 3839 to the registered owner of the vehicle and instead directed to entrust the custody thereof to the respondent. ( 2 ) ON the complaint dated 7-10-1979 lodged bye the Motor Vehicles Inspector r. V. Venstesh of R. T. O's Office mandya, that at about 8-45 P. M. on that day the bus MYN 3939 in question detained by him for non-payment of tax and !ett in the custody of watchman gurumallaiah of R. T. O's office had been stolen away by some unknown persons by assaulting the watchman, the Sub-Inspector of Police, Town police Station, Mandya, registered a case in Crime No. 154/79 for the offences under Sections 379 and 353 I. P. C. and issued F. I. R. to the court He thereafter, took up investigation of the case. On 8-10-79, during investigation of the case, he seized the bus from the premises of the pressing Components (India) Pvt. Ltd. , mysore, and detained it in the Police custody, and sent a report of the seizure of the bus to the court. Both the petitioner, U. Kariyappa said to be the proprietor of Arakere Union motor Service and the respondent P. Srikantaiah filed applications before the Chief Judicial Magistrate, Mandya, claiming the interim custody of the vehicle, as provided under Section 451 cr. P. C. While the former asked for the interim custody of the vehicle on the ground that he was the registered owner thereof and when the same was detained by the Motor vehicles, Inspector on 6-10-79 for nonpayment of the tax, it was stolen, away, the latter asked to entrust the same to his custody on the ground that he had purchased the same from the former under an agreement of sale dated 30-7-79 and after taking delivery of the vehicle he had got it repaired and made road-worthy spending a huge amount of Rs. 50,000 and when he had left the bus in the premises of the pressing Components (India) Private ltd. 50,000 and when he had left the bus in the premises of the pressing Components (India) Private ltd. , near Mysore, in his absence the Police had seized the bus from the said premises with the connivance of the previous owner. He also produced a photostat copy of agreement of sale dated 30-7-79 written on a stamp paper, purporting to be executed and signed by the previous owner. Both showed their willingness to furnish adequate surety and abide by any conditions imposed by the court to produce the vehicle before the court whenever required. They also filed objections oppossing each other's application. The peititioner-herein U. Kariyappa, who was admittedly the registered owner of the vehicle denied any knowledge about the agreement of sale of the vehicle. Alternatively, he also contended that the agreemet did not confer any ownership of the vehicle to the purchaser P. Srikantaiah. In the charge-sheet filed la,ter on by the Police on 15-11-1979, six persons, including D. Papaiah the father of p. Snkantaiah; who claimed to have purchased the vehicle arid K. Krishnappa, his close relative were shown as accused who had actually removed the bus when it was detained by the motor Vehicles Inspector on 7-10-79. ( 3 ) THE learned Chief Judicial Magistrate mandya, alter hearing the, advocates appearing for the parties on both sides and relying upon the decisions of this Court in T. C. Gopalan Nair v. Kelu1973 (1) Mys. L. J. 420. , and Gurappa Hanamanthappa kantnalli v. Shivlingappa. Dundappa Tadke 1977 (2) Kar. L. J. 129. , and in view of the fact that U. Kariyappa, the petitioner herein was the registered owner of the vehicle and he was liable to pay the tax as also responsible for all the legal consequences, held he was the proper person lor the interim custody of the vehicle and in that view he made an order dated. 17th january 1980 entrusting the interim custody of the, vehicle to the registered-owner. ( 4 ) U. KARIYAPPA the petitioner-herein, on certain conditions mentioned therein. Aggrieved by the said order, when the respondent P. Srikantaiah approached the Sessions Judge in Cr. Rev. Petn. No. 1980 the learned Sessions judge, however, being of the view that the respondent P. Srikantaiah, who claimed to have purchased the vehicle for consideration of Rs. 80,000/ - and paid a sum of Rs. 35,000/- and spent more than Rs. Aggrieved by the said order, when the respondent P. Srikantaiah approached the Sessions Judge in Cr. Rev. Petn. No. 1980 the learned Sessions judge, however, being of the view that the respondent P. Srikantaiah, who claimed to have purchased the vehicle for consideration of Rs. 80,000/ - and paid a sum of Rs. 35,000/- and spent more than Rs. 50,000/- over repairs, was the proper person to whom the custody of the vehicle had to be entrusted as the vehicle was seized from his possession. In coming to that conclusion, he observed: "even a bare comparison of the signatures on the photostat copies of the agreement and the receipt bear close resemlance to the admitted signatures of the respondent found on the application and other statements he has filed in the trial court. . . . Petitioner Srikantaiah has also produced a typed copy of the proceedings of the Regional transport Authority, Mandya dated 12-7-79. A perusal of that document goes to show that stage carriage bearing registration No. MYN 3839 standing in the name of U. Kariappa and permitted to ply on route bellakere to Amruthur and back is replaced by another stage carriage beariag stage carriage regisration no. MYN 4331 standing in the name of Sri D. Papaiah----In this context the recital made in second paragraph of the agreement dated 30-7-1979 that, the first paarty has offered to sell his idle bus bearing registration No. MYN 3839 for a sum of rupees Eighty Thousand and the 2nd party has agreed to purchase the same". "17. Taking all the above mentioned facts and circumstances into consideration, I am inclined to take the view that the stand taken by the petitioner that he had purchased the bus from the respondent for a sum of Rs. 80,000/- under the sale agreement dated 30-7-79 on payment of Rs. 35,000/- to the respondent on that very day and he has paid the balance of Rs, 45,000/- under the receipt dated 27-9-79 executed in his favour by the respondent and he had spent more than Rs. 50,000/- for getting the idle bus repaired and he had left it at the place where it was seized, by the police on 8-10-79 deserves to be tentatively accepted. 50,000/- for getting the idle bus repaired and he had left it at the place where it was seized, by the police on 8-10-79 deserves to be tentatively accepted. " ( 5 ) ACCORDINGLY, the Sessions Judge haying reversed the order made by the magistrate, the petitioner Kariyappa, who 13 admittedly the registered owner or the vehicle, has approached this court invoking the provisions of sec. 482 Cr. P. C. , with a prayer to set aside the order passed by the Sessions judge and restore the order passed by the Chief Judicial Magistrate in the interest of justice. Mr. P. Srinivasaiah, learned counsel, appearing for the petitioner argued, admittedly the petitioner U. Kariyappa was the legistered owner of the vehicle. ( 6 ) NOT only he was liable to pay the tax of the vehicle, but had also, according to the prosecution version of the case itself, when the vehicle was produced by him in the R. T. O's office for inspection it was seized by the Motor vehicle Inspector from his, possession and when it was so detained there in the custody of the watchman of the r. T. O's office, it was forcibly removed from there, the learned Magistrate, therefore, was right in entrusting the vehicle to the custody of the registered owner who was not only liable to pay the tax, but also answerable for all other legal consequences arising in future as a registered owner of the vehicle, there was nothing illegal in that and the Sessions, Judge, was, therefore, lot justified in reversing the order made by the Magistrate, merely because the respondent P. Srikantaiah claimed to have purchased and produced a photostat copy of the agreement, when the owner had denied the existence of any such contract of sale, therefore, in the interest of justice the order made by the Sessions Judge deserved to be set aside and the order made by the Magistrate deserved to be restored. ( 7 ) MR. M. B. Chandrasekhariah, learned counsel, appearing for respondent-1 srikantaiah, on the other hand argued supporting the order made by the Sessions judge. ( 8 ) SECTION 451 Cr. P. C. empowers the criminal court to make orders for interim custody of the property produced before it during trial and enquiry. ( 7 ) MR. M. B. Chandrasekhariah, learned counsel, appearing for respondent-1 srikantaiah, on the other hand argued supporting the order made by the Sessions judge. ( 8 ) SECTION 451 Cr. P. C. empowers the criminal court to make orders for interim custody of the property produced before it during trial and enquiry. When the property is produced before the criminal court, regard being had to the nature of the property so produced, the criminal court has discretion to make such order as it thinks fit for the proper custody of such property pending conclusion of the enquiry or trial. The question often before the court is what would be the proper custody pending conclusion of such enquiry and trial. Though the criminal court has discretion to make any order as it thinks fit for the proper custody of such property, it is well established such a discretion has to be exercised judiciously and not arbitrarily. It is also well established that 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. The grievance of Mr. P. Srinivas was that when the Magistrate had in proper exercise of judicial discretion and regard being had to the fact that the petitioner U. Kariyappa was the registered owner had, thought proper to entrust the vehicle to his custody, the Sessions judge was not justified in reversing that order. It appears, he is right. While making an order for interim custody of a motor vehicle, what the criminal court has to keep in view is who would be the best person to make use of the vehicle pending conclusion of the enquiry and trial, because if a mechanically propelled vehicle is kept idle for a long time not only there are chances of it being spoiled, but the person who is deprived of that possession of the vehicle either by theft or otherwise is likely be put to great loss in his bussiness. Registration of the, vehicle under the Motor Vehicles Act is obligatory before any motor vehicle is put on the load by the owner of the vehicle. Registration of the, vehicle under the Motor Vehicles Act is obligatory before any motor vehicle is put on the load by the owner of the vehicle. As provided under Section 22 (1) of the Motor Vehicles Act, 1939: No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place for the purpose of carrying passengers or goods unless the vehicle is registered in accordance with the provisions of Chapter III and the certificate of registration of thr vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prrscribrf manner. While Section 24 of the Act provided hoe registration had to br made, in case of transfer of such vehiclr registered, under the motor Vehicles Act, the owner of the vehicle has to make a report about it to the registering authority concerned, the transferee has also to make a similar re-port within 30 days of the transfer. Therefore, it is clear from tho provisions of the Motor Vehicles act that registration certificate is esential before the motor-vehicle is used on the road. Therefore, it follows that the person in whose favour the certificate of registeration is issued or stands, ordinarily and obviously is tho proper person for the interim custody of the vehicle so seized and produced before the criminal court. ( 9 ) RELYING on the decision of this Court in Guruppa Hanmanthappa Kantnalli v. Shivalingappa Dundappa Tadke (2), which was also referred to before the courts below, Mr. Chandrasekaraiah vehemently argued that not only the respondent P. Srikantaiah had purchased the vehicle, as could be seen from the photostat copies of the agreement dated 30-7-79 produced by him, but on comparison, the signatures therein tallied with the signature of the petitioner U. Kariyappa and the vehicle was also seized from, the possession of the respondent Srikantaiah. ( 10 ) THEREFORE, he was the proper person for the interim custody of the vehicle. No doubt, in the said case of gurappa Hanmanthappa Kantnalli (2), this Court observed that it cannot be laid down as a broad proposition of law that in no case the custody of the seized property can be given either to the accused or to the complainant pending disposal of the main case. S. 451 Crl. No doubt, in the said case of gurappa Hanmanthappa Kantnalli (2), this Court observed that it cannot be laid down as a broad proposition of law that in no case the custody of the seized property can be given either to the accused or to the complainant pending disposal of the main case. S. 451 Crl. PC itself did not contain any such restrictions. ( 11 ) NO doubt, in the said case the tractor and trailer were entrusted to the accused. But it is important to note that in the said case the accused to whom the custody of the tractor and trailer was entrusted was the registered owner thereof, but accused of the. commission of the offence of cheating punishable under sec. 420 IPC. , on the allegation that he having sold the tractor and trailer to the complainant had dishonestly removed them from the possession of the complainant. For that reason the high Court did not think it proper to interfere with the judicial discretion exercised by the Magistrate and the order made by the court below entrusting the custody of the tractor and trailer to the registered owner thereof. Here, in the case, at hand, merely because the vehicle is seized from the possession of the first respondent will not be proper criterion for the entrustment of the interim custody of the vehicle to him pending conclusion of enquiry or trial. The criminal Court while making an order of interim custody, as provided under sec. 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. Therefore, the view taken by the Sessions judge, that tentatively it has to be accepted that respondent Srikantaiah was the owner of the vehicle, because he had produced the photostat copy of the agreement and the receipt regarding the part payment of the price and the signatures therein also tallied with the signature of Kariyappa, is erroneous. Therefore, the view taken by the Sessions judge, that tentatively it has to be accepted that respondent Srikantaiah was the owner of the vehicle, because he had produced the photostat copy of the agreement and the receipt regarding the part payment of the price and the signatures therein also tallied with the signature of Kariyappa, is erroneous. Morever, not only Kariappa the petitioner-herein, who was admittedly the owner had denied the existence of any such contract or sale, but the prosecution version of the case was that when the vehicle was seized from the possession of Kariappa, the registered owner of the vehicle by the motor Vehicles Inspector, it was removed from the custody of the watchman by use of criminal force. There is also nothing placed on record to show that either the petitioner or the first respondent Srikantaiah, who claims to have purchased it had taken any steps for informing the registering authority as required under the provisions of the Motor Vehicles Act regarding the transfer of the vehicle. ( 12 ) THE Legislature, it appears, taking into consideration the spate of the criminal cases of this nature had thought advisible to amend the provisions of the Motor Vehicles Act making it obligatory, both on the transferor and the transferee to take a 'no objection certificate' from the registering authority before making any entry regarding the particulars of such transfer in the registration certificate of the vehicle. Under the amended provisions of the Motor vehicles Act as provided under Sec. 29-A, not only it is obligatory on the registered owner of the vehicle to make an application in such form in such prescribed manner to the registering authority for the issue of a certificate to the effect that the registering authority has no objection for entering the particulars of the transfer of ownership in the certificate of registration, the person, who claims to be the transferee of the vehicle has also to make such application before entering the particulars of such transfer or granting or refusing 'no objection certificate'. It is obligatory on the transferring authority to obtain a report in writing from the police that no case relating to thett of the motor vehicle concerned has been reported or is pending and to verify whether all the amounts due to the Government, including the rate of tax in respect of that motor-vehicle have been paid. It is obligatory on the transferring authority to obtain a report in writing from the police that no case relating to thett of the motor vehicle concerned has been reported or is pending and to verify whether all the amounts due to the Government, including the rate of tax in respect of that motor-vehicle have been paid. The amended provisions of the Act requiring such, compliance before making entries regarding the particulars of tranfer, had come into force much before, the alleged agreement of sale and the incident and to be more specific as from 16th day of January 1979. Therefore, merely because the first respondent. Srikantaiah claimed to have purchased and produced the photostat copy of the agreement of sale alleged to have been entered between him and the registered owner and the vehicle was seised from his possession, is no ground, in the circumstances of the case, to entrust the custody of the vehicle to him. Now, of course, the other document produced by him (Srikantaiah) showed that the vehicle MYN 3839 which, was being plied on a particular road is now replaced by another vehicle, but that is not the reason to hold that he would be the proper person to claim the custody of the vehicle or to use it on the road. It is thus clear, the learned Sessions judge has committed an error in reversing the order passed by the Chief judicial Magistrate in exercise of proper judicial discretion entrusting the vehicle to the registered owner of the vehicle. ( 13 ) IN the result and for the reasons stated above, the petition is entitled to succeed and it is accordingly allowed. The impugned order dated 1st february 1980 passed by the Sessions judge Mandya, is set aside, the order dated 17th January 1980 passed by the chief Judi. Magistrate, Mandya is restored. --- *** --- .