SRI RAMACHANDRA BANIA v. GOURAHARI DAS — 1989 DIGILAW 70 (ORI)

JUDGMENT : A.K. Padhi, J. - The Petitioner has challenged the order dated 12-8-1985 passed by the learned Chief Judicial Magistrate, Jeypore holding therein that the opposite party is entitled to the possession of the truck bearing registration No. ORR 2259. 2. The opposite party had lodged an F.I.R. on 2-1-1981 which was registered as jeypore P.S. Case No. 7 of 1981 u/s 379 and 408, IPC on the allegation that he had purchased the truck bearing No. ORR 2259 from the Petitioner and after purchase had entrusted the truck to him to manage the same. While in custody of the truck as a manager, with intention of misappropriating, he has taken it away. On this information G.R. Case No. 7 of 1988 was registered in the Court of the S.D.J.M. jeypore. The police seized the truck on 3-1-1981 and gave it in the zimanama of the opposite party. Challenging the order of interim custody the Petitioner preferred Criminal Revision No. 68 of 1981 in this Court. The said revision was disposed of by this Court by order dated 12-5-1981 with a direction that the opposite party is to furnish Section unity for being the zimadar. All these orders were passed during the pendency of investigation The police after completion of investigation submitted Final Form in the G.R. Case and the same was accepted by the learned Magistrate vide order dated 20 10-1981 Before acceptance of the Final Form in G.R. Case No. 7 of 1981, the informant had filed a protest petition on 19-10-1981 which had been registered as a complaint being numbered I.C.C. Case No. 78 of 1981. While accepting, the final Form, the learned Magistrate had passed no order on the protest petition, The learned Chief Judicial Magistrate, koraput took cognisance in I.C.C. Case No. 78 of 1981 fide order dated 7-1-1982. I he Petitioner filed an application for release of the truck after acceptance of the Final Form in the G.R. Case and the learned Magistrate passed order rejecting prayer for release of the truck by his order dated 7-8-1982. The Petitioner filed two criminal revisions in this Court, one against rejecting prayer for release of the truck and the other challenging taking of cognisance on the basis of the protest petition and both the revisions were registered as Criminal Revision Nos. 369 of 1982 and Criminal Revision No. 370 of 1982 respectively. The Petitioner filed two criminal revisions in this Court, one against rejecting prayer for release of the truck and the other challenging taking of cognisance on the basis of the protest petition and both the revisions were registered as Criminal Revision Nos. 369 of 1982 and Criminal Revision No. 370 of 1982 respectively. Both the revisions were taken up together for hearing. So far as prayer for quashing the order taking cognisance was concerned his lordship rejected the prayer holding that the learned Magistrate had jurisdiction to take cognisance though Final Form had been accepted and ordered that I.C.C. Case No. 78 of 1981 shall proceed on merits So far as the order of refusing prayer for release of the truck was concerned, his lordship held that the observation in Criminal Revision No. 68 of 1981 remained valid so long as G.R Case instituted on the basis of the F.I.R. continued Since the Final Form filed by the investigating agency has been accepted by the Court, the said G.R. Case has come to an end On 20-10-1981. His lordship was fun her of the opinion: ...The learned Magistrate therefore, in my view, committed gross error in rejecting the Petitioner's prayer for release of the truck on the basis of the said observation made by I his Court in the aforesaid Criminal revision, I would therefore, set aside the order of the learned Magistrate dated 7-8-1982 which is being impugned in Criminal Revision No 369 of 1982 and direct that the Magistrate would dispose of the prayer for the Petitioner for release of the truck in his favour on its own merits not being influenced in any manner by any observations made by this Court in Criminal Revision No. 68/81, after hearing the parties concerned within one month from the receipt of the records from this Court. After this judgment of this Court in Criminal Revision No. 369 of 1982 the learned Magistrate has passed the impugned order. 3. The case of the Petitioner is that he is the registered owner of the truck and registration certificate stands in his name. The truck has been seized from him. Since the Petitioner is not in unlawful possession of the property he is entitled to the custody of the property for this submission, learned Advocate for the Petitioner relies on Sardar Trilok Singh and Others Vs. Satya Deo Tripathi Harihar Singh Vs. The truck has been seized from him. Since the Petitioner is not in unlawful possession of the property he is entitled to the custody of the property for this submission, learned Advocate for the Petitioner relies on Sardar Trilok Singh and Others Vs. Satya Deo Tripathi Harihar Singh Vs. Nilkanth Singh and Another, 53 (1982) on 240 Chandra Sekhar Misra v. Smt. Pravat Nalini Mishra and Ors. 64 (1987) CLT 547 Mahammed Zariff and Anr. v. Sk Zinauhah (1989) 2 OCR 6 Sri Ph. Arunachalam v. State of Orissa and Anr. Vol. 86 U. Kariyappa Vs. P. Sreekantaiah and Another. Vol. 87 Kavaluri Sidda Reddy Vs. Bathala Rangaswamy Naidu and Another, and Vol 89 Jacob and Another Vs. Jayabharat Credit and Investment Co. Ltd., and Others, . 4. On the other hand, learned Advocate for the opposite party submitted that the Petitioner had entered into an agreement for sale of the truck with the opposite party on 30.9.1979 and in pursuance of the said agreement the Petitioner received a Sum of Rs. 21,000/- on 30-9-1979 from the opposite party which has been endorsed in the said agreement. It was further agreed that Rs. 53,000/- which was due of the Financer Deepak and Co. on being paid by the opposite party clearance certificate was to be obtained. After obtaining the clearance certificate, the Petitioner was to formally transfer the truck in the name of the opposite party. Under the terms of the agreement the title and possession passed from the Petitioner to the opposite party from that day. After execution of the agreement clearance certificate had been obtained from the Financier. The opposite party has also produced some vouchers to prove that he was in possession of the truck. The opposite party has further produced an application addressed by the Petitioner to the Regional Transport Officer, Koraput praying therein to grant permission for transfer of permit in respect of the vehicle No. ORR 2259 in favour of the opposite party. In the said application Rama Chandra Bania had stated that he wanted to sell his truck ORR 2259 to Gourahari Das Besides these documents, one Nabina Chandra Patra and Subash Chandra Patra have stated in their 161 Code of Criminal Procedure statement that in their presence agreement between Rama Chandra Bania and Gourahari Das was executed under which title of the truck was transferred in favour of Gourahari Das. On the date of agreement, Rs. 21,000/- was also paid by Gourahari Das to Rama Chandra Bania Relying on this document and statement, the opposite party submitted that he was entitled to possession of the truck u/s 457, Code of Criminal Procedure for the above submission, learned Counsel for the opposite party placed reliance on 52 (1981) CLT 445 Kulamani Swain v. Ghanshyam Sahu, 60 (1985) CLT 72. Debendra Kumar Nayak v. Abdul Rahaman Khah and Ors. 50 (1980) CLT 415 Sri Prabhat Kumar Das v. Sri Bijaya Prasad Das and Anr. Ram Parkash Sharma Vs. State of Haryana Ghaffor Bhai Nabu Bhai Tawar Vs. Motiram Keshaorao Bongirwar and Others, and Arjun Padhy and Others Vs. State of Orissa and Another, . 5. In (1989) 2 OCR 6 (supra) difference between a sale and hire purchase agreement was in question and his lordship held that in a hire purchase agreement Financier continues to be the owner until installments are paid by the borrower. Ratio of this case is not applicable to the instant case. In 1983 Criminal law journals, 1584 (supra) his lordship has laid down the principle that as to from whose possession a vehicle was taken in custody is not material, but the vehicle is to be given to custody of the person in whose name registration certificate stands 1980 Criminal Law Journal, 422 (supra) arises out of a case u/s 451, Code of Criminal Procedure where interim custody of a motor vehicle was in question. In that context, his lordship observed that interim custody of a motor vehicle during pendency of an enquiry or trial normally should be given to the registered owner of the vehicle. In 1978 Crl. Law Journal, 406 (supra) his lordship was of the opinion that the person entitled to possession of the property u/s 457 Code of Criminal Procedure cannot be equated with actual possession In Kavaluri Sidda Reddy Vs. In 1978 Crl. Law Journal, 406 (supra) his lordship was of the opinion that the person entitled to possession of the property u/s 457 Code of Criminal Procedure cannot be equated with actual possession In Kavaluri Sidda Reddy Vs. Bathala Rangaswamy Naidu and Another, interim custody of lorry u/s 451, Code of Criminal Procedure was under consideration and his Lordship laid down the principle that the vehicle in question should be released to the person in whose name registration certificate and permit stand, In AIR 1957 Patna, 685 (supra) while considering a case u/s 517 (4) Code of Criminal Procedure 1898, his lordship observed that where it is difficult to come to a definite finding as to whom the property seized belongs, the Court should direct that it should be handed over to that person in whose possession it was found and who has not committed any offence. In Arjun Padhy and Others Vs. State of Orissa and Another Narasimham, C.J. as he then was, observed: ...Undoubtedly, the general rule is that when a property is seized from a person and he is acquitted of the charge that property should be returned to him. But this rule is itself subject to several exceptions depending on the circumstances of each case and no accused person can claim, as of right, that the property seized from him should be returned to him.... In 50 (1980) CLT 415 (supra) law was laid down as follows: Under the provisions of Section 457, Code of Criminal Procedure if the Magistrate orders delivery of the property he has to deliver it to the person entitled to the possession thereof. He has to satisfy himself from the records and materials available before him that the person to whom the delivery is ordered is entitled to possession. If the materials are not sufficient he can make an enquiry into the matter by giving opportunity to the claimants before passing the order In doing so, the Magistrate should confine himself only to find out as to who is entitled to possession of the property but not the title or ownership thereof. A person may be in unlawful possession at the time of seizure and in that circumstances it cannot be said that he is entitled to possession. It must be a lawful possession. A person may be in unlawful possession at the time of seizure and in that circumstances it cannot be said that he is entitled to possession. It must be a lawful possession. The test, therefore, is not the mere possession of the property at the time of seizure, but as to who is entitled to-lawful possession. The expression entitled to possession is the sine qua non for the delivery of property u/s 457, Code of Criminal Procedure. In 53 (1982) CLT (supra) it has been observed: ...The Court is to satisfy itself from the records and materials available before it that the person to whom the delivery is ordered is entitled to possession. The words used in the Section are the person entitled to the possession thereof. In passing the order the Court should confine itself only to find out as to who is entitled to the possession of the property but not the title or ownership thereof, The above principle finds support from the decision reported in A.S.S. Ahmed Sahib v. Commissioner of Police, Madras and Anr. Considering the earlier judgments of this Court in 64 (1987) CLT 547 (supra) his lordship laid down the principle as follows: As it has been observed, the sine qua non for the delivery of property u/s 457, is the entitlement of the person to possess. Mere possession is not decisive. A person may be in unlawful possession of the property. That is not respected by the law. It has been clarified that a person may not have title or ownership of the property even then he could still be entitled to possession. This possession is not of a thief or a cheat but of a person who has right to hold it. His lordship was further of the view that even if there is a breach of contract by the person who is in possession, then it will amount to a civil dispute but not an offence. Such a possession is to be respected u/s 457 Code of Criminal Procedure In Ram Parkash Sharma Vs. His lordship was further of the view that even if there is a breach of contract by the person who is in possession, then it will amount to a civil dispute but not an offence. Such a possession is to be respected u/s 457 Code of Criminal Procedure In Ram Parkash Sharma Vs. State of Haryana their lordships have laid down as follows: ...Be that as it may, the situation is squarely covered by Section 457, Code of Criminal Procedure However, the fact that the Court has power to dispose of property seized by the police but not yet produced before the Court does not mean that the Special Judge must always release such property to the person from whom the property has been recovered, especially when the stage of the case is in suspicion, the investigation is not over and charge-sheet has not yet been laid. The Court has to be circumspect in such a situation before releasing the property. While we reverse the decision of the courts below that the Special Judge had no power to release he seized property, we should not be taken to mean that whenever the claimant asks for the property back, he should be given bark the said property. That has to be decided on its own merits in each case and the discretion of the Court has to be exercised after due consideration of the interests of justice including the prospective necessity of the production of these seized articles at the time of the trial. If the release of the property seized will, in any manner, affect or prejudice the course of justice at the time of the trial, it will be a wise discretion to reject the claim for return. From the above mentioned decisions, I am of the opinion that Section 457 of the Code of Criminal Procedure confers a discretion on the Magistrate to pass such order as he thinks fit respecting the disposal of property or delivery of such property to the person entitled to the possession thereof. The most crucial words in the aforesaid Section are 'entitled to possession'. The discretion of the Magistrate under the said Section has to be judicially exercised. This Section does not show that the property has to be given to the person from whose possession it was seized. The most crucial words in the aforesaid Section are 'entitled to possession'. The discretion of the Magistrate under the said Section has to be judicially exercised. This Section does not show that the property has to be given to the person from whose possession it was seized. On the other hand it gives a discretion to the Magistrate to decide the question about the person entitled to possession. The expression entitled to possession would normally mean a lawful or rightful title to hold the property. In tile absence of anything to show title to the property, it should be ordered to be delivered to the person in whose possession it had been at the time of attachment since there is a presumption that a person actually in possession of the property unless contrary is shown, is in lawful custody. The question of release of property has to be decided, therefore, on its own merits in each case and the discretion of the Court has to be exercised after due consideration of the interests of justice including the prospective necessity of the production of the seized property at the time of trial. In the case at hand, registration certificate stands in the name of Rama Chandra Bania, so also the road permits. The agreement in question recites that at the time of agreement, the vehicle in question was in the custody of the Financier Deepak and Co. Rs. 21,000/- was received by Rama Chandra Bania from Gourhari Das and title of the truck was transferred in favour of Gourahari Das from the date of agreement. Some voucher s are forthcoming in the name of Gourahari Das regarding purchase of some parts and some vouchers are also coming from the custody of Rama Chandra Bania, An application has been filed by Rama Chandra Bania before the Regional Transport Officer stating therein that he wants to sale the truck and permits may be transferred in the name of Gourahari Das. Clearance certificate by the Financier mentioning therein that all dues of the Financier have been paid, also has been produced by Gourahari Das though it does not indicate by whom it has been paid. Statements of Nab in Chandra Patra and Subash Chandra Patra u/s 161 Code of Criminal Procedure indicate that Rs. Clearance certificate by the Financier mentioning therein that all dues of the Financier have been paid, also has been produced by Gourahari Das though it does not indicate by whom it has been paid. Statements of Nab in Chandra Patra and Subash Chandra Patra u/s 161 Code of Criminal Procedure indicate that Rs. 21,000/- was received by Rama Chandra Bania in pursuance of the agreement The vehicle has been seized from the custody of Rama Chandra Bania, no material is before the Court as to whom the truck was delivered when it was released by the Financier. From the above material, and the law discussed above, I am of the opinion that the Petitioner Rama Chandra Bania is entitled to possession thereby direct that the possession be delivered to the Petitioner Rama Chandra Bania within three weeks from the receipt of the order subject to conditions that: (i) the Petitioner shall furnish property Sectionurity to the tune of Rs. 70,000/- to the satisfaction of the learned Magistrate before taking delivery of possession; and (ii) the Petitioner shall produce the truck as and when directed by the learned Magistrate trying I.C.C. Case No. 78 of 1981. It is made clear that the learned Magistrate who is in (sic) of I.C.C. No. 78 of 1981 can pass any order on any application filed by either party for custody of the truck on its own merits not being influenced by any manner by any observation made by me in this Criminal Revision relating either interim custody or on conclusion of the trial u/s 452, Code of Criminal Procedure.