THAKKAR MAHENDRAPRASAD BAPALAL v. STATE — 1983 DIGILAW 235 (GUJ)

R. A. MEHTA,J. ( 1 ) THIS Revision Application challenges the order passed by the learned J. M. F. C Borsad in Inquiry case No. 133 of 1983 pending under Section 156 (3) of the Cri. P. C. During the pendency of this inquiry the learned Magistrate has passed the impugned order under Section 451 for custody and disposal of the muddamal trucks in favour of the complainant opponent No. 2 herein who is the registered owner of the muddamal trucks. ( 2 ) THE petitioners contended that the trucks were taken from their custody and possession and their possession was lawful and the opponent No. 2 the registered owner had on dissolution of the partnership lawfully transferred the possession and custody to them and therefore the learned Magistrate was not justified in directing the disposal of the property in favour of the complainant merely on the ground that he was the registered owner of the trucks. ( 3 ) THE learned counsel for the opponent No. 2 original complainant has raised a preliminary objection against the maintainability of this Revision Application on the ground that an order under Section 451 Cri. P. C. is not a proper order because it is an order for proper custody of the property pending conclusion of the inquiry or trial and since it is not a final order it is inter-locutory order and therefore under Section 397 Cri. P. C. the powers of revision cannot be exercised in relation to such interoluctory order passed in inquiry. ( 4 ) THE learned counsel for the original complain ant has relied on the judgment of Allahabad High Court in the case of Nathu Lal v. State 1976 Cri. L. J. 358. In that case an order was passed under Section 451 refusing to release the property pending the trial and the Allahabad High Court held that it was an interlocutory order within the meaning of Sec. 397 (2) because it is passed during the pendency of the proceedings for preservation and protection of the property which is to be utilised for the final determination of the proceeding and hence no revision would lie against such an order. The learned single Judge of the Allahabad High Court has referred to Strouds Judicial Dictionary Fourth Edition Vol. The learned single Judge of the Allahabad High Court has referred to Strouds Judicial Dictionary Fourth Edition Vol. 5 wherein various instances are given to show what an interlocutory order meant and item No. 6 was to the effect that interlocutory order was not confined to an order made between writ and final judgment but meant an order other than final judgment and applying this test meaning other than the final judgment to interlocutory order the learned Judge came to the conclusion that generally an order which is passed in a proceeding but does not decide the right or terminate any proceding could be an interlocutory order. The learned Judge further observed an order under section 451 is in every manner an interlocutory order because it is an order passed during the pendency of the proceeding for the purpose of preservation and protection of the property which is to be utilised for final determination of the proceedings and therefore the learned Judge held that Revision Application was not maintainable. This judgment does support the preliminary objection of the complainant opponent No. 2. Another judgment relied upon by opponent No. 2 is the case of Shamrao Sampatrao Khanderai v. State of Maharashtra and another 1979 Cri. L. J. 1457. In that case the question under-section 397 (2) did not arise. The question was whether the trial court having passed the order regarding interim custody could modify the same and it was argued that it was not a final order but an interlocutory order and therefore it could be modified by the trial court. But there was no question of deciding nature of interlocutory order contemplated by Section 397 (2) Cri. P. C. ( 5 ) THE third judgment relied upon on behalf of opponent No. 2 is Vasu v. T. Unnikrishnan and another 1983 Cri. L. J. 1194. The learned Judge of the Kerala High Court held that an order under Section 451 is interlocutory order and therefore cannot be challenged by way of revision under Section 397 Cri. P. C. The cases of Allahabad and Bombay High Courts have been referred to and have been followed. ( 6 ) IN the above cases a clear view is taken that an order for interim custody pending inquiry or trial is an interlocutory order and not a final order and therefore revision under Section 397 (2) is not maintainable. P. C. The cases of Allahabad and Bombay High Courts have been referred to and have been followed. ( 6 ) IN the above cases a clear view is taken that an order for interim custody pending inquiry or trial is an interlocutory order and not a final order and therefore revision under Section 397 (2) is not maintainable. However it seems to be necessary to consider the concept of interlocutory order under Section 397 (2) Cri. P. C. a little more carefully. In the case of Amar Nath and others v. State of Haryana and others AIR 1977 SC 2185 the Supreme Court has considered the same. "the Supreme Court considered the concept of inter-locutory order qua revisional jurisidiction of court in its historical background and thereafter the Supreme Court observed as under: The main question which falls for determination in this appeal is as to what is the connotation of the term interlocutory order as appearing in sub-s. (2) of Section 397 which bars any revision of such an order by the High Court. The term interlocutory order is a term of wellknown legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure Letters Patent of the High Courts and other like statutes. In Websters New World Dictionary interlocutory has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term interlocutory order in Section 397 (2) of the 1973 Code has been in a restricted sense and not in any broad or artistic sense. It merey denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revsion to the High Court against that order because that would be against the very object which formed the basis for insertion of this particular provision in Section. 397 of the 1973 Code. 397 of the 1973 Code. Thus for instance orders summoning witnesses adjourning cases passing orders for bail calling for reports and such other steps in aid of the pending proceeding may no doubt amount to interlocutory orders against which no revision would lie under Sec. 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. (emphasis supplied ). ( 7 ) IT is thus clear that even though the order does not finally terminate the proceeding and in that sense it may not be final judgment or order yet it may decide rights and liabilities of its parties concerning a particular aspect. As observed by the Supreme Court the term interlocutory order in Section 397 (2) has been used in a restricted sense and not in any broad or artistic sense and the interlocutory orders under Section 397 are those orders which do not decide or touch the importint rights or liabilities of the parties and any order which substantially affects the rights of the parties or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision application to the High Court; and the order regarding interim custody of a very very valuable article like muddamal tucks decides and touches very important rights of the parties. Any part who is denied even interim possession would be substantially and adversely affected by it and would be entitled to invoke the revisional jurisdiction of the High Court because by such order the court is affecting and adjudicating important rights of the parties on the particular aspect and such order cannot be said to be an interlocutory order as contemplated by Section 397 of Cri. P. C. In para 9 the Supreme Court referred to the case of Baldevdas v. Filmsitan Distributors (India) Pvt. Ltd. ( AIR 1970 SC 406 ) relating to the words case decided under Section 115 of the Code of Civil Procedure and the following observation was quoted:"a case may be said to be decided if the court adjudicates for the purposes of the suit some right or obligation of the patries in controversy". The Supreme Court also made a mention of Letters Patent of High Court where an appeal would be to Division Bench from an order passed by a single Judge and orders of temporary injunctions have held to be not interlocutory having decided some rights of the parties. Several other decisions wee also referred and applying those tests the Supreme Court held that the order of the Magistrate summoning the appellants was not an interlocutory order but one which decided the serious question as to the rights of the appellants to be put on trial and therefore the revision application was fully competent. ( 8 ) IT thus appears to me that merely because an order under Section 451 is for interim custody possession and disposal of the muddaml property it can-not be said to be an interlocutory order not revisable by the High Court. It cannot be said to be an interlocutory order in that sense. It is an order which decides the substantial and important rights of the parties and therefore revision application against such an order is maintainable. I therefore respectfully disagree with the view taken by Allahabad and Kerala High Courts. ( 9 ) IN the case of Jaswantsinh Punjabhai Parmar v. Dolatsinh Somabhai Chauhan and others 1981 (5) Cri. Law Reporter 188 this High Court (V. V. Bedarkar J.) has also taken the same view and the case of Amar Math (supra) and Madhu Limaye v. State of Maharashtra ( AIR 1978 SC 47 ) have been referred to and followed. In para 12 the learned Judge has observed as follows:"the question to be considered is whether even handing over of a valuable and useful article like a tractor pending the trial can be said to be a purely inter-locutory order ? It is to be noted that in a criminal case various types of muddamal or articles are attached which require disposal prior to the conclusion of the trial. Some articles may be such as would remain in the same condition and if such articles are handed-over pending the trial to anybody no serious prejudice can be said to be caused so as to affect the proprietory right. Some articles may be such as would remain in the same condition and if such articles are handed-over pending the trial to anybody no serious prejudice can be said to be caused so as to affect the proprietory right. But when an article like a motor vehicle or a tractor is handed over to one party about which a dispute is raised by the other part and if one party has some inkiling that ultimately that vehicle may not remain with him can it be said that the party will take care of the proper condition of the vehicle or may use it in any way so that ultimately the value and use of that vehicle may be detericrated or dimintshed ? Secondly them an article like a motor vehicle is to be handed over to a person who apparently does not seem to be rightfully entitled to it would deprive the rightful person of its usage and earning from it utlmately affecting the right of subsistance or income i. e. economic benefit from the use of that particular article. A vehicle is not an article which has to remain idle and to remain in the same condition so when handing over of possession of that vehicle even under Section 451 of the Code is to be considered it is to be considered in such a way that substantial justice is meted out. The order should not be capricious so as to deprive the rightful claimant of that property even for a period of the conduct of the trial one also cannot say how long such a trial will proceed right upto the last stage i. e. upto the stage of appeal or revision. So it is very difficult to accept the contention that such an order under Section 451 of the Code can be said to be so inter-locutory order as not to be interfered with in a revision. " I am in full and respectful agreement with the reasoning and conclusion of my learned brother Bedarkar J. Therefore the preliminary objection against the maintainability of the revision application is rejected". ( 10 ) THE two muddamal trucks bearing registration Nos. GTJ 5601 and GRG 5923 were purchased in the name of the complainant Madhubhai Rambhai Patel who us a partner in the firm in the name and style of Charotar Transport Service. ( 10 ) THE two muddamal trucks bearing registration Nos. GTJ 5601 and GRG 5923 were purchased in the name of the complainant Madhubhai Rambhai Patel who us a partner in the firm in the name and style of Charotar Transport Service. The other partners were the present petitioners who had 1/2 and 1/4th share respectively and the complainant had the remaining 1/4th share. The firm had purchased the trucks in the form of Chasis. During the subsisstance of the firm the initial payments instalments and other incidental dues and expenses are made by the firm. The firm came to be dissolved on 30th April 1983 and the opponent No. 2 complainant retired from the firm. The dissolution deed Ann. A to the petition show that he was voluntarily retired from the firm with effect from 13th April 1983 and he was relieved himself of all rights titles and interest in the properites and assets of the firm by taking his capital and dues from the firm and the remaining two partners-the present petitioners were liable for all the outstanding liabilities. In respect of these two trucks also the owner has made specified provision that though these two trucks are in his name he does not have any longer any right title or interest therein. The liability for payment of loan interest instalment etc. was that of the remaining tow partners-the present petitioners. Clause 10 also provided that this amount of loan and interest was to be paid within a period of 36 months. Thus the opponent No. 2 the original complainant who is the retrucks owner of these tow muddamal trucks has voluntarily and lawfully transferred the possession of the two tucks to the petitioners. It is clear that he has no personal stake in the trucks. It appears that a sum of Rs. 1 80 0 had been paid towards the price of the truck in question by the petitioners or the firm. After the dissolution the petitioners have further paid a sum of Rs. 27 0 to TELCO and Rs. 45 0 to the Co-operative Bank towards the loans advanced by them. Since these loans have been advanced in the name of the opponent No. 2 the receipts are issued in the name of the opponent No. 2 but those receipts are coming forth from the custody of the present petitioners. 27 0 to TELCO and Rs. 45 0 to the Co-operative Bank towards the loans advanced by them. Since these loans have been advanced in the name of the opponent No. 2 the receipts are issued in the name of the opponent No. 2 but those receipts are coming forth from the custody of the present petitioners. It is not the case of the opponent No. 2 that he had paid any amount towards any instalments. Thus more than Rs. 50 0 have been paid by the present petitioners As against that the opponent No. 2 the complainant him not paid even single rupee towards the same. It is true that he continues to be liable for the outstanding loans interest and instalments to the financial institutions. By the dissolution deed it has been provided that the present petitioners shall discharge their liability. However if they failed to discharge their liabilities these financial institutions can insist for their claims against the opponent No. 2 the complainant with whom they had the privity of contract and the dissolution deed or the contract between the present parties cannot bind these financial institutions but the opponent No. 2 having lawfully and legally transferred possessions and custody of the trucks to the petitioners cannot take the same back without due process of Law and the learned Magistrate was not justified in directing interim delivery of possession to the complainant merely on the ground that he was the registered owner. ( 11 ) THE learned Magistrate has relied on the judgment in the case of Nandiram alias Nandumal Parumal v. State of Gujarat and others 7 G. L. R. 866 In that judgment the court observed that the registered owner would be entitled to remain in custody and not any other person unless he is able to establish his superior title or claim over it. In the present case the registered owner had the title and also the authority to transfer the title and possession and he has voluntarily and lawfully exercised that authority and transferred possession for valuable consideration and therefore the present petitioners were in lawful possession of the said trucks since the dissolution of the firm by the deed dt. 15th April 1983 The complaint was filed on 19th October 1983 and the trucks were seized on 25th October 1983. 15th April 1983 The complaint was filed on 19th October 1983 and the trucks were seized on 25th October 1983. The complaint is based on the allegation that the petitioners had promised regular payment of instalments and thereby the complainant was induced to part with possession of the said tucks and by not keeping their promise the petitioners have committed the offence of cheating. In that complaint the learned Magistate has passed an order for inquiry under Section 156 (3) Cri. P. C. and it appears that till to day the police has not submitted any report or charge-sheet against the present petitioners. In Special (Criminal Application No. 47/83 I had an occasion to consider the judgment in the case of Nandiram (supra ). The facts of that case showed that the petitioner had been put in lawful possession by the registered owner himself and the petitioner in that case has also paid substantial amount and therefore the petitioner-transferee was held entitled to possession as against the registered owner. ( 12 ) THE learned counsel for the complainant also relied on the judgment in the case of U. Sariyappa v. P. Sreekantaih and another 1980 Gri. L. J. 422 In that case also the Karnataka High Court held that registered owner is ordinarily a right and correct person to whom the custody of the motor vehicle shall be entrusted. The Karnataka High Court also felt that the court has discretion to make any order as it thinks fit for proper custody of such property and such discretion has to be exercised judiciously and not arbitrarily. As observed in the case of Nandiram (supra) ordinarily the registered owner would be a proper person to be entrusted the custody of the vehicle. However when such registered owner has himself voluntarily and lawfully transferred the custody and possession the transferor acquires same right which the transferor had and therefore merely on the ground that he being registered owner the learned Magistrate was not justified in passing the order of handing over interim custody to the opponent No. 2 the complainant. ( 13 ) THE learned counsel for the petitioners has relied on the judgment in the case of Kailash Chandra v. Parasmal 1981 (32) R. L. W. 260. In para 12 the Rajasthan High Court has held as follows. ( 13 ) THE learned counsel for the petitioners has relied on the judgment in the case of Kailash Chandra v. Parasmal 1981 (32) R. L. W. 260. In para 12 the Rajasthan High Court has held as follows. "the ordinary rule is that the property should be returned to one who is entitled to its possession unless his possession was unlawful. A person from whose possession the property is recovered and if he has not committed any offence in respect thereof is the person who is entitled to its possession. A criminal court would not engage itself to decide question of title". After referring to several cases the learned Judge observed as under:"there is no reason to lay down that the custody of a motor vehicle can only be given to its registered owner. The provisions of the Motor Vehicles Act do not deal with the custody of a motor vehicle or the legality of its sale. Therefore its provisions are of little relevance to decide the question of title possession or custody in a civil or a criminal proceeding even orders under Sections 451 452 or 457 Cri. P. C. should be made according to the well settled principles though they be in respect of a motor vehicle" ( 14 ) IN view of the aforesaid discussion the learned Magistrate us clearly in error in directing to hand over interim custody and possession of the muddamal truck which were seized from the present petitioners to the compainant. The petitioners have been law-fully and voluntarily put into possession and custody of the trucks by the compainant-opponent No. 2 himself At this stage there is no material to cow to the conclusion that the petitioners have committed any offence in respect of muddamal trucks or that the opponent No. 2-complainant is entitled to recover back the possession. The complainant may hat his remedies for enforcing the terms of the dissolution deed for recovery of monies for indemnifying him-self or for recovery of possession of the truck but mere filing of the criminal complaint is no way to recover possession of the truck which he had voluntarily and lawfully transferred for valuable consideration and in which he has so for not invested a single rupee and in which the petitioners have invested more than Rs. 2 50 0 ( 15 ) HOWEVER it would be necessary to see that proper condition are imposed before the petitioners are allowed to take interim possession of the mudda-mal trucks. ( 16 ) IN the result the Revision Application succeeds and rule is made absolute by quashing and setting aside the impugned order and by directing that the interim custody and possession of the muddamal trucks shall be given to the present petitioners on the same terms and conditions which were imposed by the learned Magistrate on the complainant and further on a condition that the petitioners shall file an undertaking before the learned Magistrate to the effect that they will maintain the trucks in good and road-worth condition and will produce the saw again in court whenever required W the court The petitioners shall also see that proper and full insurance is kept in force so that there is proper indemnification of all including the registered owner. The petitioners shall also undertake to keep the registered owner indemnified again any any liability. Rule made absolute accordingly. Writ to be sent immediately. Rule made absolute. .