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1998 DIGILAW 101 (RAJ)

Mohan Singh v. State of Rajasthan

1998-01-20

AMRESH KUMAR SINGH

body1998
Honble SINGH, J.–Heard learned counsel for the petitioner and the learned Public Prosecutor and learned counsel for non- petitioner No.2. (2). This petition under Section 482, Cr.P.C. is directed against the order dated 22.10.96 passed by the learned Civil Judge (Jr. Division) & Judicial Magistrate, Padampur. By the said order the learned Judicial Magistrate, Padampur rejected the application filed by the petitioner for giving the jeep in his supardagi and maintained his earlier order dated 29.11.95 whereby the supardagi of the jeep was entrusted to non-petitioner No.2. (3). The facts of the case so far as they are relevant for the disposal of this petition may be summarised as below: (4). According to allegations made by Mohan Singh (petitioner), he is the registered owner of Jeep No. PUW 1642. He agreed to sell the jeep to Kulwant Singh (non-petitioner No.2) for a sum of Rs. 77,000/-. The agreement was executed between the parties and in part performance of the contract of sale, Kulwant Singh (non- petitioner No.2) paid a sum of Rs. 50,000/- to the petitioner and obtained the possession of the jeep. The remaining amount of Rs.27,000/- was to be paid by the non-petitioner No.2 on or before 15.10.95. it was also agreed between the parties that on payment of full purchase-price. the petitioner would take steps for transfer of the title to the jeep to the non-petitioner No.2 by change of entries in the registration-certificate and other related documents. (5). It is alleged by the petitioner that non-petitioner No.2 did not pay the remaining price i.e., Rs. 27,000/- as was agreed to between the parties. On 16.10.95, the petitioner sent a notice to the non-petitioner No.2. In spite of that notice, the non-petitioner No.2 did not pay the amount which was due and no steps were taken by him to get the jeep transferred to him. The petitioner thereafter lodged the first- information-report (No.169/95) at Police Station Ghumarwali, alleging therein the commission of offences punishable under Sections 406 and 420 of the Indian Penal Code and, on the basis of that report, the Station House Officer of the Police Station Ghumarwali commenced investigation. During the investigation of that case, the jeep No. PUW 1642 was recovered by the Police Officer. (6). Applications were filed before the learned Judl. Magistrate under Section 451 of the Criminal Procedure Code for giving the jeep in supardagi. During the investigation of that case, the jeep No. PUW 1642 was recovered by the Police Officer. (6). Applications were filed before the learned Judl. Magistrate under Section 451 of the Criminal Procedure Code for giving the jeep in supardagi. On 29.11.95, the learned Judicial Magistrate, Padampur made an order to the effect that the jeep be given to Kulwant Singh (non-petitioner No.2) on supardagi subject to his furnishing supardagi nama of Rs. 1,00,000/-. It was also directed that the non-petitioner No.2 shall not dispose of the jeep and shall keep it in the same condition in which it was at that time and that he would produce the same as and when ordered by the Court. The order dated 29.11.95 was presumably passed in exercise of the powers conferred by Section 451 of the Criminal Procedure Code. The investigation on that day was in progress. (7). The petitioner filed a revision petition against the order dated 29.11.95. The revision petition No.10/96 was disposed of by the learned Addl. District & Sessions Judge No.1, Sriganganagar vide order dated 06.02.96. The learned Addl. Sessions Judge No.1, Sriganganagar dismissed the revision petition and upheld the order dated 29.11.95 passed by the learned Judicial Magistrate, Padampur. (8). After the completion of the investigation, the Police submitted the final report under Section 173 of the Criminal Procedure Code. The final report was sub- mitted after the disposal of the revision petition No. 10/96 by the learned Addl. Sessions Judge No.1 by his order dated 06.02.96. (9).The petitioner moved an application before the learned Judicial Magistrate, Padampur and prayed therein that the jeep be given to him in supardagi as investigation had been completed and final report had been submitted by the police. (10). The learned Judicial Magistrate, after hearing the learned counsel for the petitioner and non-petitioner No. 2, rejected the application moved by the petitioner. In his order dated 26.10.96, the learned Judicial Magistrate, referred to his earlier order dated 29.11.95 and also referred to the order dated 06.02.96 passed by the learned Addl. Sessions Judge No.1 whereby revision petition No. 10/96 had been dismissed. The learned Judicial Magistrate rejected the application moved by the petitioner on the ground that the circumstances which were present at the time of passing the order dated 29.11.95 had not undergone any change. Sessions Judge No.1 whereby revision petition No. 10/96 had been dismissed. The learned Judicial Magistrate rejected the application moved by the petitioner on the ground that the circumstances which were present at the time of passing the order dated 29.11.95 had not undergone any change. In other words, the effect of the impugned order dated 22.10.96 passed by the learned Judicial Magistrate was that the petitioner could not get back the jeep regarding which he was asserting that he was entitled to obtain possession. Hence this petition under Section 482, Cr.P.C. with a prayer that the impugned order dated 22.10.96 passed by the learned Judicial Magistrate, Padampur be quashed and set aside and the jeep No. PUW 1642 be given in the supardagi of the petitioner. (11). Learned counsel for the petitioner has made the following submissions: (i) That the impugned order dated 22.10.96 is neither an order under Section 452 of the Criminal Procedure Code nor it is an order under Section 457 of the Criminal Procedure Code and, at best, is an order continuing the earlier order dated 29.11.95 and, therefore, the learned Judicial Magistrate has omitted to exercise the jurisdiction vested in him. (ii) That if the impugned order is allowed to remain in force, the petitioner may be prevented from enforcing his civil rights under the contract of sale and he would not only be deprived of his right to obtain the jeep on account of non-payment of the substantial portion of the price which remained unpaid, he would also be prevented from enforcing his right to recover the sum of Rs. 27,000/- which has not been paid by non-petitioner No.2. (12). On the basis of the above submissions, the learned counsel for the petitioner has prayed that the impugned order dated 22.10.96 be quashed and set aside. (13). Learned counsel for non-petitioner No.2 has opposed this petition. (14). It is not disputed that the police has submitted final report after completing the investigation. Seizure by the police under Section 102 of the Criminal Procedure Code on the ground that the seized property is involved in the commission of the alleged offence is for the limited purpose of conducting the investigation and inquiry at trial. (14). It is not disputed that the police has submitted final report after completing the investigation. Seizure by the police under Section 102 of the Criminal Procedure Code on the ground that the seized property is involved in the commission of the alleged offence is for the limited purpose of conducting the investigation and inquiry at trial. Seizure by the police of any property under Section 102, Cr.P.C. neither extinguishes the title of any person nor it extinguishes the right of any person to possess the property if such person has a right to possess the property. The police after seizing the property becomes a custodian of the property and when the seizure is reported to the Magistrate the Magistrate has to pass order regarding that property and he acquires jurisdiction under Sections 451 and 452 or 457 of the Criminal Procedure Code as the case may be. It is not necessary that the property should be physically produced before the Court. It is sufficient if the seizure is reported to the Magistrate and he is called upon to exercise jurisdiction in the matter. If the property is required for the purpose of investigation, inquiry at trial, the Magistrate is required to pass an order under Section 451 of the Criminal Procedure Code regarding the custody of the property so that the property may not be damaged or destroyed and, in exceptional circumstances, disposal of the property may be ordered if the property is liable to speedy and natural decay and, if for any of the reasons, the Court considers it expedient, to sell the property. Where the property is ordered to be given in custody to any person or authority under Section 451, Cr.P.C., the object of the order passed under Section 451 of the Criminal Procedure Code is to make an arrangement for the safe custody of the property so that it may not be damaged and may be available before the Court as and when it is required. The order under Section 451 of the Criminal Procedure Code does not extinguish the title or the right of any person to possess the property. After the proceedings contemplated by Section 451, Cr.P.C. is completed the Magistrate is required to pass an order under Section 452 of the Criminal Procedure Code. The order under Section 451 of the Criminal Procedure Code does not extinguish the title or the right of any person to possess the property. After the proceedings contemplated by Section 451, Cr.P.C. is completed the Magistrate is required to pass an order under Section 452 of the Criminal Procedure Code. Sub-section (1) of Section 452 of the Criminal Procedure Code provides that when an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commi- ssion of any offence. (15). Sub-section (2) of Section 452 provides for the delivery of the property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, undertaking to restore such property to the Court, if the order made under sub-section (1) is modified or set aside on appeal or revision. (16). Sub-section (3) provides that, a Court of Sessions may, instead of making an order under sub-section (1) direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in Sections 457, 458 and 459. (17). Sub-section (4) provides that except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of sub-section (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of. (18). In sub-section (5) of the section, it is provided that in this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or. otherwise. (19). otherwise. (19). It is not disputed that the order which is passed by the learned Judicial Magistrate on the final-report submitted by the Police under Section 173, Cr.P.C. is a judicial order. Since the order which may be passed by the Judicial Magistrate on a final- report (save where the order is for further investigation under sub-section (3) of Section 173 of the Criminal Procedure Code) is a judicial order, it is to be preceded by an inquiry involving application of judicial mind into the matter before the Judicial Magistrate and, therefore, the consideration by the Judicial Magistrate of the police-report as well as the documents placed before him, amounts to an inquiry for the purpose of sub-section (1) of Section 452 of the Criminal Procedure Code. It may, therefore, be said that where the property was given in custody of any person under sub-section (1) of Section 452, Cr.P.C. at the time when investigation was in progress in exercise of the powers conferred by section 451 of the Criminal Procedure Code, such property is required to be dealt with under Section 452 of the Criminal Procedure Code, when the investigation is completed and, final report is accepted by the Judicial Magistrate. Learned counsel for the petitioner is justified in submitting that after the conclusion of the investigation and acceptance of the final report submitted by the police, the Judicial Magistrate is required to pass an order under Section 452 of the Criminal Procedure Code in respect of the pro- perty which was given in the supardagi of any person under Section 451 at the time when the investigation was continuing. (20). In the instant case, the operative portion of the order passed by the learned Judicial Magistrate is not very happily worded but on careful construction of that order it appears that the order has been passed by the learned Judicial Magis- trate under Section 452 of the Criminal Procedure Code. It would have been proper for the learned Judicial Magistrate to mention clearly that the order which he was passing was an order under Section 452 of the Criminal Procedure Code. (21). It would have been proper for the learned Judicial Magistrate to mention clearly that the order which he was passing was an order under Section 452 of the Criminal Procedure Code. (21). Since 1 am taking the view that the impugned order dated 22.10.96 passed by the learned Judicial Magistrate is in fact an order under Section 452 of the Criminal Procedure Code, this petition may be disposed of on the footing that the impugned order is an order passed under Section 452 of the Criminal Procedure Code. (22). Two prayers have been made in this petition. The first is to quash the order passed by the learned Judicial Magistrate and the second is to direct that the jeep be given in supardagi of the petitioner. (23). So far as the right of the petitioner to obtain the jeep is concerned, the petitioner would be entitled to get the jeep only if it can be shown that he is entitled to possession thereof within the meaning of sub-section (1) of Section 452 of the Criminal Procedure Code. It is true that he is the registered owner of the vehicle and it is also true that according to the allegations made by him a sum of Rs. 27,000/- is still due against the non-petitioner No.2 because out of the consideration of Rs. 77,000/- only Rs. 50,000/- were paid to the petitioner at the time of execution of the agreement. Since the alleged agreement to sell is not present before the Court, it is not proper to express any opinion whether the alleged document is a document evidencing sale or merely is a document of agreement to sell. It is admittedly the case of the petitioner that he handed over the jeep to non-petitioner No.2 on receiving a sum of Rs. 50,000/- in pursuance of the alleged contract, with stipulation that non-petitioner No.2 would pay the remaining price within the prescribed period. Assuming that the title of the jeep has not passed to non-petitioner No.2, it is an admitted case that possession which was given to non-petitioner No.2 was on account of a voluntary act on the part of the petitioner and that the possession of the jeep was given to non-petitioner No.2 after receiving a sum of Rs. 50,000/- from non-petitioner No.2. 50,000/- from non-petitioner No.2. Where any property is given by the seller to the purchaser after receiving a part of the price agreed to between the parties and, in part performance of the contract, it cannot be said that the purchaser does not acquire any right to possess the property. It is for the seller to establish in a competent Court that he has the right to get back the property from the purchaser who has to complied with the condition of the agreement and has not paid the price which remained unpaid. I am afraid the Judicial Magistrate exercising jurisdiction under Section 452(1) cannot be said to be the competent authority to decide whether the seller in such a case is entitled to get back the possession of the property from the purchaser on the ground that the purchaser did not pay the price which remained unpaid or that he did not comply with any other condition agreed to between the parties at the time of entering into the contract. It is for the competent Court other than the Court of Judicial Magistrate exercising the jurisdiction under Section 452(1) of the Criminal Procedure Code to give relief to the seller who wants to recover the property. Suffice it to say that where the purchaser has obtained possession of the property from the owner thereof, in part performance of the contract of sale, the purchaser would be the person entitled to possess that property, so long as it is not delivered to the seller either by himself (voluntarily) or under the orders or a decree of a competent court. (24). In the light of the foregoing discussion, the order which may be passed under Section 452 of the Criminal Procedure Code does not deprive any party of the right to establish its civil right regarding that property in the Court of competent jurisdiction. The order passed under Section 452, Cr.P.C. by the learned Judicial Magistrate, therefore, cannot be said to be a barrier in the way of either party to enforce its civil right, if any. (25). For the reasons mentioned above, it should be held that the impugned order is an order passed under Section 452 of the Criminal Procedure Code. The petition stands disposed of accordingly.