BANAMALI MOHANTA v. BASANTA KUMAR SAHOO — 1992 DIGILAW 156 (ORI)

A. PASAYAT, J, J. ( 1 ) GRANT of custody of a vehicle during pendency of a case by exercise of power under section 457 of the Code of Criminal Procedure, 1973 (in short, the Code) is the subject matter of challenge in this application. ( 2 ) THE fact situation as portrayed by the petitioner is to the following effect opposite party no. 1 Basanta Kumar Sahoo was the owner of a truck bearing registration No. ORJ 4302. On 18. 8. 1987 he sold the said truck to one Raghab Chandra Behera and executed a deed of transfer in favour of Shri Behera and also affirmed an affidavit acknowledging the transfer of the vehicle in question and handed over the original registration certificate book, permanent road permit, fitness certificate, insurance certificate etc. to Shri Behera and also filed an application form for transfer of the vehicle in the office of the R. T. O. , Keonjhar. As there was some arrear tax, the ownership of the vehicles could not be transferred in favour of Shri Behera. The petitioner purchased the said truck from Shri Raghab Chandra Behera on 11. 5. 1990 and executed an agreement for transfer of the said truck for Rs. 1,85,000/- and Shri Behera delivered possession of the truck to the petitioner on receipt of Rs. 85,000/- with a stipulation that the balance amount would be paid in two installments. The original registration certificate book, road permit, insurance certificate and fitness certificate were handed over by Shri Behera to the petitioner. The petitioner plied the vehicle for some time, and deposited the road tax in the office of the R. T. O. On 15. 7. 1990 the opp. party No. 1 approached the petitioner to take the vehicle on monthly hire basis. The petitioner finding the proposal acceptable, agreed to the same and handed over the vehicle to opposite party no. 1 for plying the same and to pay him the monthly hire charges. Unfortunately after taking the vehicle the opp. party no. 1 did not pay the hire charges, as a result of which automatically on completion of a month from the date of taking over possession, the oral agreement was deemed to be cancelled and the petitioner was entitled to get back the vehicle. When the petitioner approached the opp. party No. 1 he refused to pay the also refused to handover the truck. When the petitioner approached the opp. party No. 1 he refused to pay the also refused to handover the truck. On 3. 11. 1990 the petitioner lodged first information-report and G. R. Case No. 255 of 1990 was registered in the court of the learned Sub-divisional Judicial Magistrate, Karanjia (in short, SDJMT) under section 406 of the Indian Penal Code, 1860 (in short, IPCT) against opp. party No. 1. On 6. 11. 1990, the truck was seized from the possession of opp. Party No. 1 and the documents including the affidavit sworn by opp. party No. 1 were seized from the possession of. the petitioner. Both the petitioner and opp. party no. 1 filed applications under section 457 of the Code in the court of the learned SDJM, Karanjia with a prayer to release the truck during pendency of the case in their respective favour. On 12. 2. 1991 the learned SDJM allowed the petition of opp. party No. 1 and directed release of the truck in his favour mainly on the ground that he is the registered owner. The petitioner preferred criminal revision No. 75 of 1990 in the court of learned Sessions Judge, Saripada against the order of the learned SDJM, who dismissed the revision mainly on the ground that the allegation against the opp. party No. 1 being regarding breach of agreement, the same amounts to civil liability for which the criminal proceeding is not maintainable. In the meantime charge-sheet has been submitted against opp. party No. 1 under section 420, IPC, challenging the refusal to accept the prayer of the petitioner for release of the vehicle in his favour, this petition under section 482 of the Code has been filed. ( 3 ) THE stand of the petitioner in essence is that the vehicle should be handed over to the person who is entitled to the possession thereof. It is urged that the available documents on record clearly show that opp. party No. I was not the owner of the vehicle and had transferred the same to Shri Raghab Chandra Behera who in his turn transferred the same to the petitioner. The refusal to accept the prayer of the petitioner has been termed to be the outcome of non-application of mind. The learned counsel for opp. party no. party No. I was not the owner of the vehicle and had transferred the same to Shri Raghab Chandra Behera who in his turn transferred the same to the petitioner. The refusal to accept the prayer of the petitioner has been termed to be the outcome of non-application of mind. The learned counsel for opp. party no. 1 on the other hand has submitted that he is the owner of the vehicle and two courts have found that he was entitled to the custody of the vehicle. It is also submitted that the power under section 482 is to be sparingly exercised and it is not a case where there is any apparent infirmity in law, and therefore power under section 462 of the Code should not be exercised. ( 4 ) A plea was taken by the learned counsel for the Petitioner that while exercising the power under section 437 of the Code, and while deciding the question as to who is the person entitled to the possession of the property seized, the Magistrate has to rule out the accused from whose custody the property was seized. Apparently the submission was made relying on a decision of this Court in M. S. Jaggi v. Subash Chandra Mohapatra. The view expressed in the said case was followed by thist Court in Srinibas Sahu, v. State, and in Gadadhar v. Sriniva. The basis for such decision was that until the accused is cleared of the suspicion of having committed the crime, his possession cannot be deemed to be lawful and as such even though the property was seized from him, such Possession would not be construed to be lawful until the crime is wiped off either by submission of a final report or by discharge or acquittal. Correctness of the view expressed in these cases was doubted by another learned Single Judge and a reference was made to the Division Bench. By judgment dated 24. 3. Correctness of the view expressed in these cases was doubted by another learned Single Judge and a reference was made to the Division Bench. By judgment dated 24. 3. 1992 a Division Bench of this Court in Santosh Kumar Dash v. The State of Orissa held that in law there is no bar to consider the claim of an accused to get back the property and, on such a claim being made, the Magistrate shall apply his mind to the relevant facts and circumstances and he would be within his rights to concede to the prayer of the accused if he would be satisfied that the accused was in lawful possession of the property when it was seized from him. As to when an accused could be said to be in lawful possession of the seized property is a question which has to be decided on the facts of each case about which no straitjacket formula can be laid down. This submission on behalf of the learned counsel for petitioner has, therefore, no merit. The learned counsel for the petitioner has also urged that the violation of the terms of agreement attracted punishment under section 406, I. P. C. and non-payment of hire charges and refusal to deliver the vehicle amounts to offence of breach of trust punishable under section 467, I. P. C. and also cheating punishable under section 420, I. P. C. It is urged that the charge-sheet has been submitted against opp. party no. 1 under section 420, I. P. C. In this background, the opposite party no. 1 is characterized to be ineligible to have custody. ( 5 ) THERE is a difference between Section 452 and section 457 of the Code. In the former, the court can feel almost sure as to who is the person to whom the property belongs on its own findings. But no such inference can be drawn when property is disposed of under section 457. That is the reason why greater power are given to courts under section 452 than under section 457. Section 457 is a residuary provision, which applies when provisions of sections 451 and 4. 52 are not attracted. But no such inference can be drawn when property is disposed of under section 457. That is the reason why greater power are given to courts under section 452 than under section 457. Section 457 is a residuary provision, which applies when provisions of sections 451 and 4. 52 are not attracted. An order for disposal or delivery of seized property may be made by a Magistrate under section 457, if the following conditions are satisfied: a. Property has been seized by then Police; (b) Such seizure has been reported to a Magistrate under the provisions of the Code; and (c) The seized property has not been produced before the Magistrate during the inquiry or trial before him. The ambit of the last condition depends upon the meaning of the words Tis not produced before a criminal court during an inquiry or trial. In the quoted expression, the Legislature has used present indefinite tense in passive voice. As such, it is not permissible to laterpret than to mean may not be produce or as Twill not be produced. The words Tis not produced have reference to the point of time when the Magistrate to whom seizure has been reported is called upon to make an order for disposal of such property. The expression Tand such property is not produced before a criminal court during an inquiry or trial in section 457 (1) merely refers to a stage of investigation and provides a condition precedent for exercise of jurisdiction of the Magistrate under this section. If the property seized is produced before a Criminal Court during inquiry or trial, the jurisdiction of the Magistrate under this section ceases. This power is limited to selection of one of the two alternatives indicated in section 457, i. e. , (a) Tdelivery of property to the person entitled to the possession thereof; and (b) disposal of it. He has wide discretion in the matter of disposal of the property where he elects the second of the aforesaid two alternatives. His choice of the alternative is, however, further restricted. If the person entitled to possession of the seized property is known, then the Magistrate has the only choice of delivery of the property to him. He has wide discretion in the matter of disposal of the property where he elects the second of the aforesaid two alternatives. His choice of the alternative is, however, further restricted. If the person entitled to possession of the seized property is known, then the Magistrate has the only choice of delivery of the property to him. The power to ascertain as to who is the person entitled to possession vests in the Magistrate under section 457 as was held by the Supreme Court in Kasturi Lal Ralia Ram Jam v. State of Uttar Pradesh, while dealing with the corresponding section 523 of 1898 Code. The words used in section 457 (1) are The person entitled to the possession thereof. These words cannot be equated with actual possession. Nor can they be equated with the expression the person from whom the property is seized or taken.- It must be a lawful possession. The test, therefore, is not the mere possession of property at the time of seizure, but as to who is entitled to lawful possession. The person who claims to take possession of the property must satisfy the court about his entitlement, for which purpose he is required to establish that he was in lawful or rightful possession of the property in question. The expression entitled to possession is the sine qua non for the delivery of property under section 457. A person may not have title or ownership of the property even then he could still be entitled to possession. As observed by this court in Mahommed Zariff and another v. Sh. Zinaullah, a mere possession is not decisive, and the possession should not be of a thief or a cheat but of a person who has right to hold it. Placing strong reliance on the observation that the possession should not be pf a thief or a cheat, and the fact that charge-sheet has been submitted under section 120, I. P. C. the learned counsel for the petitioner submitted that the opposite party no. 1 is not entitled to the custody. ( 6 ) THE case of petitioner all through is that on the basis of an oral agreement, the opposite party no. 1 was handed over possession of the vehicle on 15. 7. 1 is not entitled to the custody. ( 6 ) THE case of petitioner all through is that on the basis of an oral agreement, the opposite party no. 1 was handed over possession of the vehicle on 15. 7. 1990, but the hire charges were not paid as a result of which on completion of a month from the date of taking possession of the vehicle the oral agreement was deemed to have been cancelled and the petitioner was entitled to get back the vehicle. These aspects are to be gone into at the trial, as observed by this court in Mahommed Zariff's case (supra) and, what would be the effect of the breach of commitment would be adjudicated. Whether the opp. party no. 1 has become the owner of the vehicle pursuant to an agreement or there was merely an agreement for paying the monthly hire charges has to be adjudicated on evidence being led by the parties. At this juncture, I do not feci it proper to deal with that aspect if there is any breach of commitment an hire charges were not paid, the relied would be available under law may be granted to the petitioner, but to hold that the petitioner was not entitled 10 possession would not be proper. However, while dealing with an aspiration under section 457, the respective claims of the parties 6. M (1987) C. L. T. 547. re not to be adjudicated on merits and a prima-facie assessment as to who is entitled to possession is made, while undertaking such exercise, the Magistrate is to confine himself only to find out who is entitled to possession of the property but not title or ownership thereof. This view was expressed by this court in Sri Prabhat Kumar Das v. Sri Bijoy Prasad Das and another, and was endorsed in Mahommed Zariff s case (supra ). The relevant aspects have been considered by the revisional court, though the trial court seems to have been swayed by the fact that the opposite party no. 1 being the registered owner was entitled to custody. It cannot be said that in every case when the vehicle is required to be registered under the Motor Vehicles Act, the vehicle has got to be released in favour of the person in whose name the vehicle is registered. 1 being the registered owner was entitled to custody. It cannot be said that in every case when the vehicle is required to be registered under the Motor Vehicles Act, the vehicle has got to be released in favour of the person in whose name the vehicle is registered. I do not find any reason to interfere with the order passed by the learned Sessions Judge. ( 7 ) FURTHER, it may be noticed that section 397 (3) of the Code restricts the revisional jurisdiction of a High Court. Where an application under section 397 has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by either of them. The question that emerges is whether what has been specifically prohibited under section 397 (3), can be entertained by exercise of power under section 482. There is no absolute embargo on the exercise of power under section 482. But considering the legislative intent, in rare and exceptional cases only power under section 482 is to be exercised where a party has been unsuccessful in a revision under section 397. The object of section 482 is to secure ends of justice. This is an extraordinary power vested in the High Court to prevent abuse of the process of Court. I do not think that the case in hand is to be one falling to that exceptional category where notwithstanding prohibition under section 397 (3) the power under section 482 is to be exercised. The criminal misc. case accordingly fails and is dismissed. Cr. Misc. case dismissed.