Research › Browse › Judgment

Patna High Court · body

1988 DIGILAW 187 (PAT)

Ram Uday Prasad Singh v. State Of Bihar

1988-04-29

BINODANAND SINGH

body1988
Judgment Binodanand Singh, J. 1. This application under Sections 397 and 401 of the code of Criminal Procedure (hereinafter referred to as the Code) is directed against the order, dated 1-8-1987 passed by Shri A. P. Sharma, Judicial Magistrate, begusarai, in Case No.44c/86, by which he has rejected the prayer of the petitioner for release of Maxi-taxi, bearing Registration No. B. R. I.7451, in his favour. 2. The petitioner claims release of the vehicle in his favour on the ground that the certificate of registration lies in his name and thus he is the owner of the vehicle in question. Admittedly this vehicle was purchased and is registered in the name of the petitioner by taking loan from the State Bank of India, begusarai, and in security of the loan the petitioner has mortgaged his own land to the State Bank of India. The opposite party No.2 Ramashish Singh on the other hand claims release on the vehicle on the ground that he is the guarantor in loan transaction. Besides on the ground that a partnership firm, named and styled as M/s. Ramashish Singh and Company, was created and a deed of partnership was executed by the parties on 2-9-1985 to run the business of plying the aforesaid vehicle and according to the terms of the agreement he was to get 90% of the income from the vehicle and 10% was to go to the petitioner after deducting all the expenses. 3. The facts which are not in dispute and are relevant for the purpose of disposal of this application, are that the vehicle in question was registered in the name of the petitioner in the register of the motor vehicle authority. This vehicle was purchased after taking loan from the State Bank of India and in the name of the petitioner, in which transaction opposite party No.2 was merely a gurantor. On 8-9-1985 the petitioner lodged a case at Cheria Bariyarpur Police station, which was registered as Cheriabariarpur P. S. Case No.107/85 under sections 341, 379, and 323 of the Indian Penal Code against opposite party No.2 Ramashish Singh and one Hare Ram Singh. On the same day the police officer of Cheria Bariyarpur Police Station seized the Maxi-taxi, bearing No. B. R. I.7451, i. e. , the vehicle in question from the Sahan of opposite party No.2 ramashish Singh. On the same day the police officer of Cheria Bariyarpur Police Station seized the Maxi-taxi, bearing No. B. R. I.7451, i. e. , the vehicle in question from the Sahan of opposite party No.2 ramashish Singh. The First Information Report was received in the Court of Judicial magistrate concerned at Begusarai on 11-9-1985 and on that date a petition was filed by the petitioner before the Judicial Magistrate for release of the vehicle in question in his favour. On the next date, i. e. , on 12-9-1985 it appears that a petition for the release of the aforesaid vehicle was also filed on behalf of opposite party No.2, who also appeared through the counse. by filing Vakalatnama in the Court of Judicial Magistrate. The petitions of the parties were not disposed of then and there by the Judicial Magistrate. In the meantime a protest petition was filed on behalf of the informant, i. e. , the petitioner on 19-9-1985. By order, dated 5-10-1985 the Judicial Magistrate called for a report from the officer-in-charge of Cheria Bariyarpur Police Station, as to whether the Maxi-taxi in question has been seized by the police or not. It appears from the lower court record that the report of the Officer-in-charge of Cheria Bariyarpur police station was received on 8-10-1985 in which it was reported that the Maxi-taxi in question, bearing No. B. R. I.7451, was not seized nor seizure list was prepared but it was kept in the police station. On the same date it appears to have been submitted before the learned Magistrate that final report in the case had been submitted by the Investigating Officer. On this very date a petition was filed on behalf of the opposite party No.2 praying therein that the Investigating Officer may be directed not to release the vehicle in question till the disposal of the petitions filed by the parties for the release of the vehicle and on the basis of that petition the Judicial Magistrate directed the Investigating Officer not to release the vehicle till the petition of the parties were pending in the court and were disposed of. On 14-10-1985, the lawyers for the parties were heard on the question of release of the vehicle in question and from the order, dated 14-10-1985 passed by learned Judicial Magistrate it appears that the Investigating officer had also disclosed in his report that the vehicle in question had not been seized in connection with the criminal case but had been brought to the police station in order to avert breach of peace. In view of the fact that the final report under Sections 323, 342 and 379 of the Indian Penal Code had been submitted by the Investigating Officer and that the vehicle in question had not been seized in connection with this case, the learned Judicial Magistrals came to the conclusion that the petitioner filed by the parties had become infructuous and hence the petitions of both the parties were rejected. The earlier order passed by the learned Judicial Magistrate directing the concerned police station not to release the vehicle till the disposal of the petitions of the parties was also vacated. It appears that on the same date a petition was filed on behalf of the petitioner in the court of Judicial Magistrate stating therein that the petitioner intended to move the Superior Court against the orders of Judicial Magistrate passed on 14-10-1985 and hence a prayer was made in that petition that the vehicle in question should not be released to any party of the case till further orders of the court. Accordingly, the learned Judicial Magistrate on 16-10-1985 directed the police station concerned not to release the vehicle in question to either of the parties till 12 days from that date, i. e. , till 28-10-1985, by which date the petitioner was directed to produce the order of the superior court if any. The period of the aforesaid order directing the Police Officer of Cheria Bariyarpur Police station not to release the vehicle in question was further extended on some ground or other from time to time. The petitioner thereafter filed a criminal revision before this court, being Cr. Revision No.870/85, on 6-11-1985 which was finally disposed of by order, dated 9-1-1986 with a direction that the learned judicial Magistrate will dispose of the protest filed in Cheria Bariyarpur Police station Case No.107/85 as early as possible and then pass appropriate orders in accordance with law regarding release of the vehicle in question. Revision No.870/85, on 6-11-1985 which was finally disposed of by order, dated 9-1-1986 with a direction that the learned judicial Magistrate will dispose of the protest filed in Cheria Bariyarpur Police station Case No.107/85 as early as possible and then pass appropriate orders in accordance with law regarding release of the vehicle in question. It was farther ordered by this court in the meantime the police shall not release the vehicle in question. 4. It appears that the aforesaid protest petition filed by petitioner was treated as a petition of complaint and the case proceeded further as a complaint case. The complainant, i. e. , the petitioner was examined and an enquiry under section 202 of the Code was also made. After conclusion of the enquiry under section 202 of the Code opposite party No.2 Ramashish Singh and one Hare ram Singh were summoned to stand trial under Sections 323, 342 and 379 of the indian Penal Code. It further appears that opposite party No.2 and the aforesaid hare Ram Singh filed a criminal miscellaneous application before this court, being Cr. Misc. No.6866 of 1986 challenging the order of issue of summons against them as well as for quashing the whole prosecution. The aforesaid criminal miscellaneous application was permitted to be withrawn by order, dated 14-8-1986 with an observation that the petitioners of that application will be at liberty to make all the submissions which were made in this High Court at the time of framing of the charge before the trial court. Thereafter, on 10-6-1987 the petitioner filed a petition before the Judicial Magistrate for release of Maxitaxi in question in his favour on the ground that he was the owner of the said vehicle. A petition was also filed on behalf of the opposite party No.2 praying therein not to release the vehicle in view of the order passed by this court in criminal Misc. No.6866/86, dated 14-8-1986, which petition of the petitioner has been rejected by the impugned order. 5. The learned counsel appearing for the petitioner has challenged the correctness and propriety of the impugned order on the ground that the learned court below has passed the said order on wrong consideration and without understanding the implication of the order of this court correctly and under an erroneous belief that in view of the order passed by this Court in Criminal Misc. No.6866/86, the learned Judicial Magistrate would not be properly acting if he will pass an order with respect to the release of the vehicle. At this very stage it may be clarified that the observations made in Criminal Misc. No.6866/86 were made while considering the question of quashing of the order issuing processes against the opposite party No.2 as well as the entire criminal prosecution. At that time the question of release of the vehicle in question was not at all under consideration. Whatever submissions were advanced they were in support of the assertions of the petitioners of that case, i. e. , opposite party No 2 in the present case and one Hare Ram Singh, and were directed against the criminal prosecution and not the question of release of the vehicle. Hence whatever observations were made in that criminal miscellaneous application were regarding the quashing of the prosecution and thus the learned Judicial Magistrate did not understand the correct implication or the order and it appears that being misled by that order he has passed the impugned order. It might have also been possible that the learned Magistrate did not pass the order with respect to the release of the vehicle in question by way of abundant precaution thinking that the order of release if passed by him, the same may amount to disregard for the orders of this court passed in Criminal Misc. No.6866 of 1986. 6. Now while assessing the position of the vehicle in question with respect to its detention at the Cheria Bariyarpur Police Station, as already stated this vehicle was not seized in connection with any case as reported by the police officer of Cheria Bariyarpur Police Station. The question of the vehicle being kept in seizure at the police station now in connection with the police case instituted at Cheria Bariyarpur Police Station on the First Information report lodged by the petitioner also does not arise since that police case has already ended in final report. The question of the vehicle being kept in seizure at the police station now in connection with the police case instituted at Cheria Bariyarpur Police Station on the First Information report lodged by the petitioner also does not arise since that police case has already ended in final report. So far as the complaint case started on the basis of the protest filed by the informant-petitioner is concerned, from the record it appears that no search warrant for the seizure of this vehicle in connection with the complaint case was over issued by tne trial court, hence it cannot be said that this vehicle is in detention at the Cheria Bariyarpur Police Station in connection with this complaint case. However, from the record it appears that this vehicle remained in detention at Cheria Bariyarpur Police Station under the orders of the learned magistrate at times and for some time under the orders of this court, i. e. , the order passed in earlier Criminal Revision No.870 of 1985 as well as in this revision application. So far as the order passed in earlier revision application filed in this court is concerned, it may be pointed out that the stay of the release of the vehicle in question came to an end with the disposal of the protest petition, since that order of the High Court was effective only upto the date of disposal of the protest petition. But the fact remains that at the moment this vehicle is not the subject-matter of a case so long it is not required in connection with any case. However, it is lying at the police station under the orders of this court passed in this criminal revision. 7. The most glaring aspect of this matter is that this vehicle, namely, maxi-taxi bearing registration No. B. R. I.7451, was seized as far back as on 8-9-1985 and since then it is lying at Cheria Bariyarpur Police Station in open air under the sun and shower of rain and as such it must have been loosing its utility. The condition of the vehicle in question also must have deteriorated to a great extent by now and it will go on rotting and loosing its utility if it is not handed over to any body. The condition of the vehicle in question also must have deteriorated to a great extent by now and it will go on rotting and loosing its utility if it is not handed over to any body. In the circumstance, the justice demands that the vehicle in question should not be allowed to be destroyed in this manner, hence it has to be released in favour of some body. 8. Now the question arises for consideration is as to in whose favour this vehicle should be released. The petitioner as well as the opposite party No.2 both are claiming the ownership as well as the possession of the vehicle on the date of its seizure. As already stated so far as the petitioner is concerned, he is claiming the ownership and possession over the Maxi-taxi on the date of seizure on the basis that the registration of the vehicle in question in the Motor Vehicles department stands in his name and that he purchased the vehicle in question after taking loan of Rs.1,13,000 from the State Bank of India and has been paying road tax etc. regularly. Besides his claim is that he is the real owner of the aforesaid vehicle and the same had been taken away by the opposite party no.2 illegally for which he instituted a case, which is now pending in the shape of complaint case before the Judicial Magistrate. The claim of the opposite party No.2 is based on his assertion that he stood as guaranter in the loan transaction advanced by the State Bank of India, begusarai, to the petitioner for the purchase of the vehicle in question. Besides there is also a partnership business created under an agreement entered into by the petitioner and the opposite party no.2 with respect to the business of plying the aforesaid vehicle. At the moment i do not propose to express any opinion as to the ownership and possession of the vehicle on the date of its seizure since this question may crop up for consideration before the trial court in course of trial of complaint case pending in the court below. But the important question which is to be decided is as to whether who is entitled to get the release of the vehicle in question in the circumstances of this case. 9. But the important question which is to be decided is as to whether who is entitled to get the release of the vehicle in question in the circumstances of this case. 9. The learned counsel appearing for the petitioner has submitted that the petitioner is entitled to release of vehicle in question in his favour on the facts and in the circumstances of this case. Law with respect to the disposal of the property has been laid down in Chapter XXXIV of the Code. Sec.451 of the code has no application in this case since the vehicle in question has never been produced in the court during any enquiry or trail. But Sec.452 of the Code which lays down the law regarding passing an order for disposal of property at conclusion of the trial and Sec.457 of the Code lays down the law with respect to the procedure to be followed by a Magistrate if the property had not been produced in the Criminal Court during an enquiry or trial. Sections 452 and 457 of the Code lay down by implication that such property may be delivered to the person entitled to the possession thereof. The learned counsel appearing for the petitioner has relied on the case of Sardar Singh Kohali V/s. M/s. Swastik financial Corporation (P.) Ltd. , New Delhi and others, reported in 1964 (2) CLJ 492, wherein the question of entitlement to release has been decided in favour of the person in whose name the vehicle in question was registered under the motor Vehicles Act. On the other hand, the learned counsel appearing for the opposite party No.2 has cited the case of M/s. Chandra Brothers V/s. State of bihar and others, reported in 1980 (28) BUR 689, wherein it has been held that purchase of Mini Bus by hire purchase agreement between financier company and the purchaser, default of payment of instalments by purchaser and seizure of vehicles by financier, the act of financier cannot be held to be criminal act. In my view the aforesaid decision has no application in this case in view of the obvious fact that in the present case the petitioner in whose name registration of the vehicle in question stands in the Motor Vehicles Department and has paid the entire price of the vehicle claims release in his favour on the one hand and on the other hand, the opposite party No.2 claims his ownership and possession on the basis of merely being a guaranter in the loan transaction and on the basis of a deed of partnership executed by the parties after the purchase of the vehicle in question but in the case relied upon by the learned counsel appearing for the opposite party No.2 the dispute was between the financier and the owner, i. e. , the person in whose name the vehicle was registered under the Motor Vehicles act. On default of payment of instalment of loan the financier had seized the vehicle in question. What will be the effect and implication of the deed of agreement executed by the parties in connection with a partnership firm created for plying the vehicle in question may be considered by the trial court itself while considering the allegation against the opposite party No.2. 10. On behalf of opposite party No.2 case of Ram Prakash Sharma V/s. State of Haryana, reported in 1978 Cr LJ 1120, has been relied upon but after going through the decision cited by the opposite party No.2 I find that it is quite on a different point. The question for consideration in the aforesaid reported case was as to whether the criminal court had the power to release the property seized by the police from a person and reported to the court but not yet produced before the court and the power of the criminal court in this regard was upheld by the Supreme Court. Casually it has been observed in this decision that the property seized should be released to the person from whose possession it was seized, but the facts and circumstances of that case were quite different from the present case. Casually it has been observed in this decision that the property seized should be released to the person from whose possession it was seized, but the facts and circumstances of that case were quite different from the present case. In the case in hand according to the petitioner, the opposite party no.2 was not in lawful possession of the vehicle in question and the vehicle was taken to the sahan of the opposite party No.2 by commission of its theft, which is a matter to be decided by the trial court. However, in view of the fact that very detention of the vehicle at the police station in the manner as it is since 1985 does not appear to be proper. 11. This application is, therefore, allowed and the order of the learned court below, which has been impugned in this application, is hereby set aside and it is directed that the vehicle in question, i. e. , B. R. I.7451 seized by the police of Cheria Bariyarpur Police Station and now lying at the police station shall be released to petitioner on furnishing sufficient security to the satisfaction of the trial court, subject to the condition that the vehicle shall be produced before the trial court as and when required and the petitioner will give effect to the further orders of the trial court as to the disposal of the same. It is, however, be made clear that the order of release of the vehicle in question in favour of the petitioner shall not prejudice the criminal trial in any manner whatsoever. 12. This application is, accordingly, disposed of. Application allowed.