C. R. PAL, J. ( 1 ) THIS petition filed by the petitioner under S. 482, Cr. P. C. challenging the order of the learned Sessions Judge, Puri passed in Criminal Revision No. 42 of 1997 on 3-6-1997 is taken up for final disposal at the time of admission with the consent of the parties. ( 2 ) ON behalf of the petitioner it is submitted that the petitioner entered into an agreement Annexure-1 with the opposite party No. 2 on 25-10-1996 to hire the tractor bearing registration No. OSX 9288 and the trolley bearing registration No. OSX 9289 with the ploughing accessories belonging to the opposite party No. 2 on a monthly hiring charge of Rs. 8,000/ -. It was also agreed that the present petitioner would pay Rs. 25,000/- as advance which could be adjusted towards the hiring charges in case of default of the petitioner in paying the monthly charges for three months. The agreement was for a period of eleven months. According to the agreement, the possession of the tractor, the trolley and its ploughing accessories were given to the petitioner. Subsequently, on 18-2-1997 the present opposite party No. 2 lodged an FIR, Annexure-2 at Puri Sadar Police Station alleging that the petitioner did not pay the monthly hire charges as agreed and kept the tractor and trolley concealed in some place. Accordingly, a case under S. 406, IPC was registered and in course of investigation, the tractor and the trolley were seized. After the seizure, the present opposite party No. 2 advanced his claim to take possession of the aforesaid vehicles. The petitioner also moved a petition before the learned S. D. J. M. to release the vehicle and the trolley in his favour. The learned S. D. J. M. after hearing both the sides passed order releasing the vehicles to the custody of the present opposite party No. 2. The present petitioner being aggrieved by the aforesaid order filed the revision as mentioned earlier and being unsuccessful has now come up with this petition challenging the orders passed by the lower Courts and seeking an order in his favour. The present petitioner being aggrieved by the aforesaid order filed the revision as mentioned earlier and being unsuccessful has now come up with this petition challenging the orders passed by the lower Courts and seeking an order in his favour. ( 3 ) THE learned counsel appearing for the petitioner submits that since the vehicles were seized from the possession of the petitioner who was in lawful possession of the vehicles at the time of seizure, the possession of the vehicle should have been given to the petitioner. The learned counsel appearing for the opposite party No. 2 submits that the opposite party No. 2 being the registered owner of the seized vehicles the learned S. D. J. M. has rightly passed the order restoring the same in favour of the opposite party No. 1. It is also contended that the order passed by the learned Sessions Judge in upholding the order of the learned S. D. J. M. is also sustainable for the aforesaid reason. It appears from the seizure list, a copy of which has been filed as Annexure-3, that the vehicles were seized from the possession of the petitioner on 18-2-1997. On a perusal of the agreement (Annexure-1), it is found that possession of the vehicle was to remain with the petitioner from 26-10-1996 for eleven months for the use of the petitioner on payment of Rs. 8,000/- per month. It is the case of the opposite party No. 2 that the petitioner defaulted in payment of the charges which the petitioner does not dispute. Under the terms of the agreement in the event of default the opposite party No. 2 is entitled to cancel the agreement and take back possession of the vehicles. Relying on the above clause of the agreement the learned counsel for the opposite party No. 2 contended that the Court below have rightly restored the possession in favour of the opposite party No. 2. It is also contended that as there is a criminal case against the petitioner for an offence under S. 406, IPC in respect of the seized vehicles, the petitioner is not entitled to take possession of the same. Learned counsel for the petitioner on the other hand contended that since the petitioner was in possession of the vehicles pursuant to an agreement his possession cannot be termed as unlawful. Learned counsel for the petitioner on the other hand contended that since the petitioner was in possession of the vehicles pursuant to an agreement his possession cannot be termed as unlawful. It is also contended by the learned counsel for the petitioner that even if a criminal case has been registered against him that may not be a consideration for not releasing the vehicles in his favour when he was in possession of the vehicles lawfully at the time of seizure. ( 4 ) IT may be stated here that the scope of S. 457, Cr. P. C. is settled as far as this Court is concerned in Sri Prabhat Kumar Das v. Sri Bijoy Prasad Das, reported in (1980) 50 Cut LT 415 wherein it has been held as follows :-"under the provisions of S. 457, Criminal Procedure Code 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 circumstance, 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 under S. 457, Criminal Procedure Code. " ( 5 ) FROM the passage quoted above it is clear that the sine qua non of the delivery of the property under S. 457, Cr. P. C. is the entitlement of the person to possess. The mere possession is not decisive. A person may be in unlawful possession of the property and such possession is not respected by law. P. C. is the entitlement of the person to possess. The mere possession is not decisive. A person may be in unlawful possession of the property and such possession is not respected by law. The petitioner here is neither the owner nor has the title over the property but was in possession of the same pursuant to the agreement. It is alleged that the petitioner violated the agreement and did not pay the hiring charges and kept the vehicles out of sight of the opposite party No. 2. The agreement does not provide any provision to produce the vehicles before the owner, viz. , the opposite party No. 2 from time to time during subsistence of the agreement. The opposite party No. 2 is the registered owner of the vehicles which fact has also not been denied by the present petitioner. But only from the above fact it will not be proper to entrust the custody of the vehicles to opposite party No. 2 as there is no doubt that the provisions of S. 457, Cr. P. C. are not remedial providing remedy to recover possession of the vehicles when admittedly the vehicles have been seized from the possession of the petitioner who was in possession of the same in accordance with the agreement between the parties. If the petitioner violated the terms of the agreement or did not honour the agreement and committed breach thereof he can be proceeded against for breach of contract or for damages or for other reliefs including recovery of vehicles etc. under the Civil Law and the possession of the vehicles may not amount to commission of an offence. Even if there is criminal case against the petitioner involving him in an offence under S. 406, IPC relating to the seized property that cannot be a bar to consider his claim to possess the property. In Santosh Kumar Dash v. The State of Orissa, reported in (1992) 5 OCR 241: The question whether while exercising power under S. 457 of the Code of Criminal Procedure relating to delivery of property following seizure by any police officer and while deciding the question as to who is "the person entitled to the possession thereof" the Magistrate can consider the accused, from whose custody the property is seized as one of such persons was for consideration. This Court after taking into consideration the earlier decision held that in law there is no bar to consider the claim of an accused to take back the property and, on such claim being made, the Magistrate shall apply his mind to the relevant fact 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. In the instant case, it has already been stated earlier that the petitioner was in possession of the vehicles according to an agreement. So, under the circumstances, applying the principles laid down in the cases referred to above the impugned order cannot be sustained. Accordingly, the impugned order is set aside and the learned S. D. J. M. , Puri is directed to release the vehicles to the custody of the petitioner on his executing an indemnity bond for Rs. 3,00,000/- (Rupees three lakhs) with the following conditions :- (I) That the petitioner shall produce the said tractor and trolley as and when called upon to do so by the Court during the trial of the case. (II) That the petitioner shall not make any alteration in the body of the vehicles. He will not change the colour of the vehicles and he shall keep it in the same condition as it delivered to him. (III) That if any alteration or repair is needed, then he shall seek prior permission of the Court. (IV) That the petitioner shall not transfer or otherwise dispose of the aforesaid vehicles till the case is decided. The petition is allowed. Petition allowed.