Md. Hanif Khan v. State Of Bihar — 1983 DIGILAW 345 (PAT)

Judgment S.J.HYDER, J. 1. This case arises out of an unfortunate family dispute. Mustaque Ali Khan, Opposite party No. 2 is the erstwhile son-in-law, of the applicant. The third Opposite party, Altaf Khan is the son of the deceased daughter of the applicant. Altaf Khan was a ninor aged about ten years at the commencement of the proceedings. He may not know-about or at best may have a hazy idea of these proceedings which are being conducted on his behalf by Mustaque Ali and opposite party No. 2. 2. The dispute between the parties relates to a truck bearing No. BHR 6481. According to the applicant, this truck along with another truck bearing No. BHR-7185 were purchased by him from his own funds in the name of his daughter Smt. Aisha Bano. The money spent in the acquisition of the said trucks was alleged to have been invested by the applicant and the name of Aishna Bano was only Benami in the records. 3. It is admitted by the parties, that Smt. Aisha Bano was married to Mustaque Ali Khan, opposite party No. 1, in the year 1970 she died a premature death in the Medical College Hospital at Patna on Decsmber 25, 1980. She left behind three issues on her death. All the said issues born to Aisha Bano from her union with Mustaque Ali Khan are alive. It is not in controversy that Aisha Bano had, in fact, no income of her own and that Mustaque Ali Khan was living with the applicant till sometimes after the death of Aisha Bano. 4. The trouble between the parties started when truck bearing No BHR 6481 is purported to have been transferred by Aisha Bano in favour of Altaf Khan on July 21,1981. An affidavit about the purported transfer is alleged to have been sworn by Altaf Khan, who at that time, was about 8 years old, before a Magistrate. Another affidavit is said to have been sworn before the same Magistrate on July 22, 1981 by Aisha Bano. On the same date the District Transport Officer allowed the application for the transfer of the truck in favour of Altaf Khan, whose name was entered into the relevant papers. Obviously. Aisha Bano had died on December 25, 1980. She could not have transferred the truck in favour of Altaf Khan in the year 1981. On the same date the District Transport Officer allowed the application for the transfer of the truck in favour of Altaf Khan, whose name was entered into the relevant papers. Obviously. Aisha Bano had died on December 25, 1980. She could not have transferred the truck in favour of Altaf Khan in the year 1981. The affidavit sworn by Altaf Khan in relation to the said transfer could not have been sworn by him before the Magistrate as he was aged only about 8 years of age at that time. On the face of it something fishy appear to have been done in regard to the transfer of the truck bearing No. BHR 6481 in the name of Altaf Khan. 5. The applicant commenced the prosecution of the opposite party No. 8 on March 21, 1983, by filing a complaint in the Court of the Chief Judicial Magistrate, Dhanbad. In. the complaint it was, inter alia, stated that it was Mustaque Ali Khan who signed the affidavit and shworn it before the Magistrate on July 21, 1981. It was further stated that Mustaque Ali Khan was instrumental in getting the affidavit purported to be the affidavit of Aisha Bano sworn on July 22, 1981 and it has got the truck transferred clandestinely in the name of Minor son, Altaf Khan by practising fraud in connection with the said affidavits. According to the petitioner, Mustaque Ali Khan committed offences punishable under Sections 420, 467,468, 471, and 474 of the Indian Penal Code. In the complaint filed by the applicant further prayer was made that the track bearing No. BHR 6481 may be seized as Mustaque Ali Khan was likely to remove it from the jurisdiction of the Court. The complaint filed " by the applicant is a lengthy document and I have purposely omitted the portions which are not relevant for the disposal of this case. 6. The learned Chief Judicial Magistrate, Dhanbad, forwarded the complaint for investigation to the officer-in-charge, Dhanbad Police Station. The police first seized the truck bearing No. BHR-6481 and prepared a seizure list which was signed by Ehsamudain, the driver of the track in question. The police over reached itself and it also seized the truck bearing No. BHR 7185. 6. The learned Chief Judicial Magistrate, Dhanbad, forwarded the complaint for investigation to the officer-in-charge, Dhanbad Police Station. The police first seized the truck bearing No. BHR-6481 and prepared a seizure list which was signed by Ehsamudain, the driver of the track in question. The police over reached itself and it also seized the truck bearing No. BHR 7185. There was no dispute between the parties in relation to the last named truck bearing No. BHR-7185 and the same was not the subject-matter of the complaint filed by the applicant which had been sent for investigation to the police. The truck bearing No. BHR-7185 was still in the name of Aisha Bano at the time of its seizure. 7. The applicant as well as Mustaque Ali Khan, O. P. 2 moved separate applications for the release of the two trucks. The learned Chief Judicial Magistrate ordered the release of the said trucks in favour of the applicant by his order dated 7-4-1983. He rejected the application of Mustaque Ali Khan on the ground that he was an accused in the case and he should have surrendered in the said court. Since he did not do so, he was not entitled to any hearing. Against the order of the learned Chief Judicial Magistrate dated April 7, 1983, Mustaque Ali Khan filed an application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) before this Court. His application was allowed. The order of the learned Chief Judicial Magistrate was set aside and the case was remanded to him for a fresh hearing after giving an opportunity to both the parties to lead evidence to substantiate their claims. 8. Mustaque Ali Khan (O. P. No. 2) acting as legal natural guardian of his son, Altaf Khan, moved an application under Section 157 of the Code for the release of the two trucks. A similar application was moved on behalf of the applicant before the learned Chief Judicial Magistrate. After hearing the parties, and given them opportunity to lead evidence in the case the learned chief Judicial Magistrate by his order dated July 29, 1983 ordered the release of the two trucks in favour of Altaf Khan through his natural guardian, Mustaque Ali Khan. The applicant feeling aggrieved by this order of the learned Chief Judicial Magistrate, Dhanbad has approached this court. The applicant feeling aggrieved by this order of the learned Chief Judicial Magistrate, Dhanbad has approached this court. He prays that the order of the learned Chief Judicial Magistrate may be set aside and the two trucks in question may be released in favour of the applicant. 9. As already pointed out that there was no dispute in the case with regard to the truck bearing No. BHR-7185 between the parties and the applicant had made no prayer for the seizure of the said truck. The police was over zealous in seizing the said truck. The order of the learned Chief Judicial Magistrate in relation to the said truck is clearly untenable. The truck in question was being driven by Amiruddin Khan, the driver at the time of its seizure. He has filed an affidavit that he is an employee of the applicant and he was driving the truck as such as an employee at the time of its seizure. It is, therefore, evident that the truck bearing No. BHR.-7185 was seized from the possession of the applicant and hi is entitled to retain such possession. The order recorded by the learned Chief Judicial Magistrate on July 29, 1983, in so far as it concerns the truck bearing No. BHR-7185 is hereby set aside. 10. With regard to the truck bearing No. BHR-6481, lengthy arguments have been addressed to me at the time of hearing. I do not propose to enter into these submissions which are not relevant to the controversy. 11. From the order of the learned Chief Judicial Magistrate dated July 29, 1983, it is evident that he has been greatly influenced by the two facts in recording the impugned order. In the first place, the learned Chief Judicial Magistrate, Dhanbad, has held that in case the applicant was in possession of the truck in question, he need not have made a prayer for its seizure. It has been next held that the documents issued by the Transport Authority and the Insurance papers indicate that the truck stood in the name of Altaf Khan and as such Altaf Khan under the guardian of his father, Mustaque Ali Khan, was the best person to whom the truck in question should be restored. In my opinion, both grounds are unfounded and must be reversed. 12. In my opinion, both grounds are unfounded and must be reversed. 12. Taking the second ground, on the basis of which, the impugned order has been passed, it may be pointed out that the transfer of the truck bearing No. BHR 6481 could not have been affected in favour of Altaf Khan after Ayeshas death. The entire proceedings relating to the said transfer are the subject-matter of the complaint. It is alleged by the applicant that it was Mustaque Ali Khan who fabricated the documents, on the basis of which, the transfer was effected. It is shocking to the judicial conscience that a person accused of committing serious offences in relation to a property should be handed over the custody of the same. It will also be proper to refer the statements of Mushtaque Ali Khan made in his application for anticipatory bail moved before this court in relation to the complaint case filed by the applicant against him. In paragraph 9 of the bail application, Mustaque Ali Khan has specifically said that he was at no point of time in possession of the relevant papers regarding the truck and that he had no knowledge about its ownership or that the same had been changed in the name of his son. On the other hand now Mustaque Ali Khan relies on the possession of the documents relating to the said truck bearing No BHR 6481 for sustaining his claim to the resteration of its possession it is, thus crystal clear that Mustaque Ali Khan has not come to this court with clean hands and his claim for possession should not have been sustained by the learned Chief Judicial Magistrate in respect of the said truck. In the seizure report prepared by the police on March 28, 1983, Ehsanuddin is said to be the driver of the truck bearing No. 6481. Amiruddin Khan has been shown as driver of the truck bearing No. BHR 7851. The signatures of both these persons appear in the seizure list. Both the aforesaid drivers have filed separate affidavits stating therein that they were plying the trucks as servants of the applicant when it was seized by the police. They have made a joint application to the learned Chief Judicial Magistrate stating the two trucks may be released in favour of the applicant. On the other hand, according to opposite party No. 2. They have made a joint application to the learned Chief Judicial Magistrate stating the two trucks may be released in favour of the applicant. On the other hand, according to opposite party No. 2. Suresh Sahay and Ramesh Prasad were the drivers of the truck bearing No. BHR 6481 and the other truck is said to have been driven by Mohar Ali. The said drivers have also filed affidavit to support the claim of opposite parties 2 and 3 that the Dhanbad police was in collusion with the applicant and it has forged the seizure list with the signatures of Ehsanuddin and Amiruddin Khan. It has also been pointed out that the affidavits sworn by the drivers of the trucks in questions supporting the claim of opposite parties 2 and 3 were earlier and they should be taken into account as stating correct fact. I am unable to accept this submission. The police was under statutory duty to prepare seizure list and to give a copy of the same to the persons from whose possession the vehicles in question had been taken. It is, therefore, difficult believe that the seizure lists have been forged by the police in collusion with the applicant. Moreover, the affidavits on behalf of the opposite parties Nos. 2 and 3 by the drivers concerned do not specifically state that they were driving the trucks at the time of their seizure. The difference in the two sets of affidavits one filed on behalf of the applicant and the other filed on behalf of opposite party Nos. 2 and 3 is that of a few days. No importance can, therefore, be attached to the filing of the affidavits on behalf of the opposite party Nos. 2 and 3 earlier than the affidavit of the drivers filed on behalf of the applicant. 13. Coming back to the first reason assigned by the learned Chief Judicial Magistrate in support of his impugned order it may be remembered that the truck is a vehicle which is capable of moving at a fast speed. It was possible for the applicant to apprehend that unless sized, the truck may be taken out from the jurisdiction of the court by use of force by Mustaque Ali Khan, O. P. No. 2. It may be that Ehsanuddin, the driver of the truck bearing No. BHR 6481 may not be a reliable person. It was possible for the applicant to apprehend that unless sized, the truck may be taken out from the jurisdiction of the court by use of force by Mustaque Ali Khan, O. P. No. 2. It may be that Ehsanuddin, the driver of the truck bearing No. BHR 6481 may not be a reliable person. He could have very well colluded with Mustaque Ali Khan in removing the truck from the jurisdiction of the court. Be that as it may the prayer made by the applicant for the seizure of the truck bearing No. BHR 6481 is not such a circumstance which could have swayed the court below. 14. The applicant has filed large number of documents to prave that the money spent in the acquisition of the vehicles had been invested by him. This Court, however, exercising the jurisdiction under Section 482 of the Code cannot go into the complicated question whether the truck stood in the name of Aisha Bano, Ranami. Suffice it to say that on the death of Aisha Bano, the applicant, also acquired a share in the trucks standing in her name. Coupled with the facts that the trucks were being run by the applicant, he is the best person entitled to its possession. 15. I, therefore, set side the order of the learned Chief Judicial Magistrate, Dhanbad, dated July 29, 1983 and I order that the said two trucks shall be released in favour of the applicant Md. Hanif Khan. He has already executed the indemnity bond of a sum of Rs. One lac with two sureties of line amount each. The documents have been furnished to the satisfaction of the Chief Judicial Magistrate, Dhanbad. The said two trucks are already in his possession under the orders of the court. He is further directed to keep separate accounts of the income and expenditure of the fruck bearing No. BHR 6481. The said account shall be furnished every three months from today in the court of the learned Chief Judicial Magistrate, Dhanbad, or before such Magis trate to whom the complaint case is transferred. The learned Magistrate shall have jurisdiction to verify the correctness of the said accounts.