Chandra Shekhar Jha v. State of Bihar — 1981 DIGILAW 95 (PAT)

Judgment Manoranjan Prasad, J. This application by the petitioner, Chandra Shekhar Jha is directed against the order dated 3.3.1981, passed by the Chief Judicial Magistrate Nalanda at Bihar Sharif in Misc. Case No. 8 of 1981 rejecting the petitioner's prayer made in his petition dated 11.2.1981 for release of Bus No. B.H.N. 6665 which had been seized by the Police of Nalanda Police station on 3.2.1981 under the provisions of Section 129A of the Motor Vehicles Act 1939. 2. In order to appreciate the point involved in this Case certain facts need be stated. The petitioner had purchased the Bus in question after taking a loan from the Canara Bank, Bihar Sharif which he had to repay in certain instalments and in order to secure the repayment of the loan the petitioner had also hypothecated the Bus in question to the Bank under an agreement dated 28.8.1975. According to the Bank, the petitioner made default in payment of certain instalments on which by letter dated 17.11.1980 (Annexure E) the Manager of the Bank wrote to the Superintendent of Police, Bihar Sharif to seize the Bus and to keep it in his custody, and the Manager of the Bank repeated this request to the Superintendent of Police in his subsequent letter dated 3.12.1980 (Annexure F). Annexure 1 is a Station diary entry No. 48 dated 3.2.1981 made at Nalanda Police Station by its Officer-in-Charge from which it appears that in pursuance of the said request of the Manager of the Bank the Superintendent of Police had directed the seizure of the Bus and there upon the Officer-in-charge of Nalanda Police Station seized the Bus on 3.2.1981 under section 129A of the Motor Vehicles Act at Nalanda Mor while it was plying. On the ground that when the Bus was stopped the driver and the conductor of the Bus had fled away and the Khalasi of the Bus had not been able to show any paper concerning the Bus. 3. On the ground that when the Bus was stopped the driver and the conductor of the Bus had fled away and the Khalasi of the Bus had not been able to show any paper concerning the Bus. 3. There upon the petitioner filed a petition dated 11.2.1981 (Annexure 2) in the Court of the Chief Judicial Magistrate, Nalanda for the release of the Bus in his favour on the ground that he was the owner of the Bus and that it is properly registered in his name with valid certificate of fitness from 22.1.1981 to 21.1.1982 and he holds valid permanent stage carriage permit for the route Resaur to Chhabilapur via Bihar Sharif Rajgir for two up and two down trips valid from 12.8.1980 to 11.8.1983 and there was also proper tax token for the period 1.1.1981 to 31.3.1981 and the Bus was also properly insured for the period 30.8.1980 to 29.8.1981. The petitioner also showed all these papers to the police on 13.2.1981. 4. The aforesaid prayer of the petitioner was, however objected to by the Bank by means of a petition dated 13.2.1981 (Annexure 5) in which it was stated that the petitioner had entered into an agreement for purchase of the Bus and according to the terms of the agreement the petitioner holds the Bus under hypothecation to the Bank and he had agreed to repay the loan amount of Rs.84,250/- in thirty six monthly instalments of Rs.2,340/- commencing from 28.9.1975 but after making some payments the petitioner had become a defaulter and had failed to comply with the terms of the agreement with the Bank. The Bank, therefore, prayed for directing the Officer-in-charge of Nalanda police Station to deliver possession of the Bus to the Manager of the Bank. The Bank reiterated its aforesaid prayer by filing another petition dated 18.2.1981 (Exhibit 7). 5. The learned Magistrate disposed of the aforesaid petition dated 11.2.1981 filed by the petitioner and the two petitions dated 13.2.1981 and 18/2/1981 filed by the Bank by his impugned order dated 3.3.1981 by which he refused to deliver possession of the Bus to the petitioner and it is against the said order that the petitioner has filed the present revision application. 6. In a decision of this Court in the case of Ram Kripal Singh Yadav Vs. 6. In a decision of this Court in the case of Ram Kripal Singh Yadav Vs. Ganga Prasad Yadav and others it has been held that when a motor vehicle is seized by the police and a question arises as to whom it should be delivered it should be delivered to the person whose name appears in the owner's book and the question as to who was the real owner cannot be investigated by the Magistrate. In that case one Ram Kripal Singh Yadav was the owner of a truck and he had purchased it on a hire purchase bas s from one M/s Sen and Brothers Company. Ganga Prasad Yadav was the guarantor. On the night between the 21st and 22nd of January, 1972 Ramlagan Mahto as the driver of Ram Kripal Singh Yadav was driving the truck with one hundred bags of sugar from Sasaram Sugar Mills to Calcutta and near Barharia turning on the Chapra Siwan Road the truck was stopped and seized by the police. There upon a prayer was made to the Magistrate on behalf of the owner and driver of the truck for release of the truck in their favour but the same was rejected by the Magistrate who passed an order for release of the truck in favour of the guarantor, Ganga Prasad Yadav. Against that order the owner, Ram Kripal Singh Yadav filed a revision application in the High Court. It appears that there was dispute between Ram Kripal Singh Yadav and one Prabhu Nath Chaudhary as to who was the real owner of the vehicle. The case of the Prabhu Nath Chaudhary being that he was the real owner and that Ram Kripal Singh Yadav was a mere name lender. In such a situation it was observed that the question as to who was the real owner could not be investigated into by the Magistrate and since the truck stood registered in the name of Ram Kripal Singh Yadav and the tax token was also in his name, the truck should be made over to Ram Kripal Singh Yadav as in the case of a motor vehicle, the owner has certain rights as well as liabilities prescribed under the Motor Vehicles Act and for contravention of any of the provisions contained there in it is the owner who is held responsible and made liable. 7. 7. In the case of U. Kariyappa Vs. Sreekantaiah and another it has been held that 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 and that the provisions of section 22 (1) and 24 of the Motor Vehicles Act indicated that the person in whose favour the certificate of registration is issued or stands, ordinarily and obviously is the proper persons for the interim custody of the vehicle seized and produced before the Criminal Court. Therefore, the Criminal Court while making the order of interim custody, has to enquire first of all whether the person who claims of the interim custody of the vehicle seized is registered owner entitled to use the vehicle as required under the provisions of the Motor Vehicles Act and 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. In that case it was held that the custody of the vehicle could not be refused to the registered owner merely because the opposite party had produced the Photostat copy of the agreement of sale of the vehicle and the receipt regarding the part payment of the price and the signatures there in also tallied with the signature of the registered owner, when there was nothing on the record to show that the opposite party had taken any steps for informing the registering authority as required under the provisions of Section 29A of the Motor Vehicles Act regarding the transfer of the vehicle. 8. 8. In the instant case the Bus in question was admittedly seized by the Police from the custody of the driver, conductor and the Khalasi of the petitioner while the Bus was plying on the road and the petitioner is admittedly the purchaser as well as the registered owner of the Bus having a valid certificate of fitness and he also holds a valid permanent stage carriage permit for route Resaur to Chhabilapur via Bihar Sharif Rajgir for two up and two down trips, and there is also a proper tax token for the Bus which is also properly insured, as stated in the petitioner's petition dated 11.2.1981 (annexure 2) which has not been controverted by the Bank. In such a situation the petitioner is the only right person in whose favour the Bus in question should be released. 9. It has, however, been contended on behalf of the learned counsel appearing for the Bank opposite party that though the petitioner is the purchaser of the Bus in question and he is also the registered owner, the Bus in question should be released in favour of the Bank as the petitioner had purchased the Bus after taking loan from the Bank under an agreement in pursuance where of the petitioner had hypothecated the Bus in favour of the Bank and had promised to pay the loan amount in certain instalments in which he had defaulted. In this connection the learned counsel appearing on behalf of the Bank also referred to sub-section (5) of Section 31 A of the Motor Vehicles act which lays down that where the person whose name has been specified in the certificate of registration as the person with whom the registered owner has entered into a hire purchase agreement satisfies the registering authority that he has taken possession of the vehicle owing to the default of the registered owner under the provisions of the agreement and that the registered owner refuses to deliver the certificate of registration or has absconded, such authority may, after giving the registered owner an opportunity to make such representations as he may wish to make and notwithstanding that the certificate of registration is not produced before it, cancel the certificate and issue a fresh certificate of registration to the person with whom the registered owner has entered into the hire purchase agreement. The learned counsel has also referred to Sub-section (6) of the said section which lays down that the provisions of the said sub-section (5) shall, as far as may be, apply to a motor vehicle which is subject to hypothecation as they apply to any motor vehicle which is held under a hire, purchase agreement. The said provisions of Sub-section (5) and (6) of Section 31 A of the Motor Vehicles Act, however, do not help the Bank as those provisions came into play when the person with whom the registered owner has hypothecated the vehicle has taken possession of the vehicle, whereas in the instant case the Bank has not taken possession of the vehicle but is only seeking for possession of it through the Criminal Court. 10. The learned counsel for the Bank opposite party has also referred to section 19 (c) of the Hire Purchase Act. 1972 which lays down that where a hire purchase agreement is terminated under that Act, then the owner shall be entitled, subject to the provisions of Section 17 and Section 20 and subject to any contract to the contrary, to enter the premises of the hirer and seize the goods. This Provision, however, does not manifestly apply to the instant case as the petitioner is not holding the Bus in question under any Hire purchase agreement with the Bank nor the Bank is the owner of the Bus, the owner of the Bus being the petitioner, and the position of the Bank being only that of a creditor which has advanced certain loan to the petitioner for the purchase of the Bus to be repaid by the petitioner to the Bank in certain instalments, and to secure the repayment of the loan the Bus stands hypothecated to the Bank under an agreement. Therefore if there has been any breach of the agreement the Bank may seek its remedy in a Civil Court but the Bus which was seized under the provisions of Section 129A of the Motor Vehicles Act from the possession of the petitioner who happens to be owner with all the papers Concerning the Bus standing in his name, cannot be released by Criminal Court in favour of the Bank in preference to the petitioner. 11. 11. The learned counsel appearing for the Bank opposite party has referred to a decision of the Punjab High Court in the case of under Singh Sunder Singh Vs. jaswant Singh Sethi and others. In that case the petitioner claimed the motor vehicle stating that they had purchased it and had given it to one of the respondents on hire-purchase but he sold it fraudulently to the other respondent and prayed for the possession of the motor vehicle seized. In that case it was held that although the presumption was that the person in actual possession of the property was its owner until facts were proved otherwise, since the petitioners were the original purchaser of the property and so the ostensible owners of it, even though the property was in possession of the respondent at the time of the seizure by the police, the property should be returned to the petitioners as the ostensible owners entitled to the possession of the property. This case, however. does not help the Bank in the least as in the instant case the Bus in question has been seized by the Police not only from the possession of the petitioner but the petitioner is also the real owner of it in whose name the registration certificate and other papers concerning the Bus also stand. 12. For the aforesaid reasons the application is allowed and the impugned order dated 3.3.1981 passed by the learned Magistrate is set aside and the Bus in question is directed to be released in favour of the petitioner on his furnishing security bond to the satisfaction of the court below. Application allowed.