Kanta Toshan v. State of Rajasthan — 1998 DIGILAW 47 (RAJ)

Honble KHAN, J.–Parties to this unfortunate litigation are a daughter and her father and this petition u/S. 482 Cr.P.C. arrays them on opposite sides under the following peculiar circumstances: (2). Kanta Toshan, the petitioner, is the married daughter of Mata Din Sharma Joshi, Respondent No.2. According to the petitioner, in order to augment her income she thought of plying a video coach on Jaipur - Ganganagar route and stood in need of raising Bank loan to purchase a vehicle for the said purpose. Her brother, Ashok Kumar, was an employee with the Rajasthan Co-operative Bank. Her father, Respondent No.2, advised her to raise the loan from the Bank in his name as that would facilitate early sanction of the loan by the Bank and that she would re-pay the said loan as per instalments stipulated and after she had discharged the Bank liability he would get the vehicle transferred in her name. A writing to that effect was also allegedly written (Ann.II) between the parties. A loan of Rs. 6 Lakhs was accordingly obtained from the Bank in the name of the Matadin Resp. against Chessis No. 1510 (Tata) in the year 1995. The petitioner incurred a further expenditure of Rs. 3,25,850/- on body-building of the vehicle and the first insurance policy was also obtained from Oriental Insurance Co. Ltd. Jaipur in the name of Matadin, the registered owner of the vehicle. But, as per agreement between the daughter and the father the possession of the vehicle remained with the daughter-petitioner. The petitioner started to ply the vehicle on the Jaipur-Ganganagar route through the agency of Deepak Travels, owned by one Hazari Lal. It was also being plied for tourist parties. The petitioner continued to pay the Bank instalments, State Road Tax and other usual taxes in respect to the vehicle in question viz 14-P-4578. (3). When the vehicle in question was being plyed in the manner stated above it so happened that the police officials at Police Station Ratangarh checked the vehicle at 1.00 A.M. on 13.6.96 at Sangam Chauraha Ratangarh and seized the same for violating the provisions of the Motor Vehicle Act, Hazari Lal, as Driver of the vehicle and Matadin Respondent No.2 as owner thereof were challaned in the court of Addl. Chief Judicial Magistrate, Ratangarh. On 15.6.96 the learned Magistrate, on an application made by Matadin Resp. Chief Judicial Magistrate, Ratangarh. On 15.6.96 the learned Magistrate, on an application made by Matadin Resp. before him, ordered for the release of the seized vehicle on the supardgi of the said Respondent. Here the case of Matadin Respondent is that after having executed the required supardginama in the Court when he reached the Police Station Ratangarh alongwith the order of the Court Ram Kishan ASI told him that Hazari Lal Driver, Jagdev Singh and Vinod Kumar Toshan (the son-in-law of Resp. No.2) had already taken the said vehicle and that they would deliver the possession thereof to him at Jaipur. The case of the police however, is that the vehicle had been seized in connection with crime No.95/96 registered at the police station on 23.5.96 for offences u/Ss. 279/337/338 IPC and on receipt of the order of the Court dated 19.6.96 the same was released in favour of Matadin Resp. The case of the petitioner on this point is that after getting the delivery of the vehicle on his supardgi from the police at P.S. Ratangarh Matadin Resp. delivered the possession thereof to the petitioner after receiving a sum of Rs. 15000/- from her. In this behalf it may be mentioned that Resp. Matadin appears to have taken no steps till 21.2.97 with regard to the non-delivery of the vehicle to him by the police official at Police Station Ratangarh. On 21.2.97 he moved an application in the Court of the learned Magistrate complaining that the possession of the vehicle was not delivered to him by the police as per Courts order dated 19.6.96. The learned Magistrate called for a report from the Police Station, Ratangarh and on conducting enquiry held that the vehicle had been duly handed over by the Police at Ratangarh to the Respondent Matadin and that if he was in any way cheated and dishonestly induced to re-transfer the possession thereof by the petitioner to her and/her men, he (the father-Respondent) may take steps according to law. After the learned Magistrate had passed his order on 17.3.97 in the manner stated above Matadin Respondent filed a complaint in the Court of the learned Magistrate on 1/2.5.97 against Vinod Kumar (his son-in-law), Jagdev Singh, Hazari Lal and Ram Kishan ASI, Police Station Ratangarh and further requested the learned Magistrate to get the complaint investigated by DSP, Ratangarh, or S.P. Churu. The learned Magistrate forwarded the complaint to SHO. P.S. Ratangarh u/S. 156(3) for investigation and report according to law. On the basis of the complaint FIR No. 114 of 1997 dated 16.6.97 u/Ss. 420, 406 and 120B IPC was registered against the abovenamed persons and the case is being investigated. (4). On 2.9.97 Matadin Respondent moved an application u/Sec. 457 Cr.P.C. in the Court of the Judicial Magistrate at Laxmangarh, Distt. Sikar contending therein that the vehicle in question had been seized by the Police Officials at Police Station Laxmangarh and that since he was the registered owner of the said vehicle and the vehicle was no more required by the police the possession of the same be handed over to the petitioner on his supardgi. The learned Magistrate called for the report from the police at Laxmangarh. The Station House Officer reported on 11.9.97 that the vehicle in question had been seized on 1.9.97 from the possession of the one Randhir Singh, Bus Driver, in connection with an accident cases registered at Police Station Laxmangarh vide FIR No. 238/97 u/S. 279/337 IPC. The SHO further reported that in the course of the investigation conducted, including the interrogation of Randhir Singh Bus Driver, it was known that the vehicle was being plied by Smt. Kanta Toshan petitioner through the agency of Deepak Travels and that she used to look after the said vehicle and she had appointed Randhir Singh as the driver of the vehicle, though the vehicle stood registered in the name of Matadin, her father who had strained relations with her daughter. It may be mentioned that a similar application u/S. 457 Cr.P.C. had also been moved by Smt. Kanta Toshan petitioner before the Judicial Magistrate Laxmangarh on 5.9.97 and the learned Magistrate had called for similar report from the SHO P.S. Laxmangarh and the SHO had submitted his report to the above effect in respect to both the applications. The petitioner had also filed a number of documents including the writing executed by her father in her favour, Bank pay slips, Road Tax payment receipts etc. and the affidavits of Randhir Singh Driver and Hazari Lal, Proprietor, Deepak Travels, Jaipur. The petitioner had also filed a number of documents including the writing executed by her father in her favour, Bank pay slips, Road Tax payment receipts etc. and the affidavits of Randhir Singh Driver and Hazari Lal, Proprietor, Deepak Travels, Jaipur. After considering the police report, the documents submitted by the parties and hearing them the learned Magistrate, vide his order under examination dated 12.9.97, held that by getting certain documents executed or prepared by her father in respect to the repayment of Bank loan Smt. Kanta Toshan did not become entitled to the legal possession of the vehicle when it stood registered in the name of her father, Matadin Respondent. He therefore, ordered that the vehicle be released on Matadins executing a supardginama in the amount of Rs. 6 Lakhs. Aggrieved by such order of the learned Magistrate the petitioner has approached this Court through this petition. (5). Mr. R.S. Rathore, the learned counsel for Matadin Respondent raised a preliminary objection to the effect that the order passed by the learned Magistrate was a revisable order and therefore the petition u/Sec. 482 Cr.P.C. was not maintainable in view of the specific provision provided u/Sec. 397 Cr.P.C. to obtain the desired relief. Dr. Tiwari, the learned counsel for the petitioner, however, submitted that the impugned order has been passed u/Sec. 457 Cr.P.C. and was in the nature of an interlocutory order in respect of which a petition u/Sec. 482 and not an application u/Sec. 397 Cr.P.C. may be made. The learned counsel further submitted that if the impugned order is considered to be having some element of finality attached to it and is found to be an order revisable u/S. 397 Cr.P.C. then this Court, having concurrent jurisdiction with that of the Sessions Judge to revise such orders may treat this petition under Sec. 397 Cr.P.C. and dispose of the same accordingly. Mr. Rathore opposed the request of Dr. Tiwari on the ground that heirachy of courts must be observed in the matter of exercising revisory jurisdiction u/Sec.397 Cr.P.C. and the petition may be transferred to the Sessions Judge for disposal u/Sec. 397/399 Cr.P.C. (6). A study of Secs. Mr. Rathore opposed the request of Dr. Tiwari on the ground that heirachy of courts must be observed in the matter of exercising revisory jurisdiction u/Sec.397 Cr.P.C. and the petition may be transferred to the Sessions Judge for disposal u/Sec. 397/399 Cr.P.C. (6). A study of Secs. 451, 452 and 457 occurring in Chapter XXXIV of the Code of Criminal Procedure 1973 discloses that where a property has been seized by the police but not produced before the Court, the power to dispose of the same is covered by Sec.457 Cr.P.C., but where the property has been seized and/or otherwise produced before the Court the disposal thereof is governed by S.451. However, if the question of disposal of the property arises after the enquiry or trial in any criminal court has been concluded, the disposal of property is governed by Sec.452 Cr.P.C. In this behalf reference to the Supreme Court decision in the case of Ram Prakash vs. State of Haryana (1) may be made. In an earlier decision in the case of Smt. Basavva Kom Dayamangouda Patil vs. State of Mysore & Anr. (2) the Apex Court had held that `production before the Court does not mean physical custody or possession by the Court, but includes even control exercised by the Court by passing an order regarding the custody of the article. Their Lordships further observed that `the Object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of police officers in every case where it has taken cognizance. Viewed in the light of these observations of their Lordships of the Apex Court it appear that whereas Sec. 451 seems to contemplate the passing of an interim order to remain effective during the pendency of the trial of the criminal case by the Court, Secs. Viewed in the light of these observations of their Lordships of the Apex Court it appear that whereas Sec. 451 seems to contemplate the passing of an interim order to remain effective during the pendency of the trial of the criminal case by the Court, Secs. 452 and 457 seems to visualise final orders regarding the disposal of the case-property or the property seized by the police during the course of investigation of a case or otherwise. Accordingly therefore where as holding of the an enquiry as to whether to whom the property is to be delivered or who is entitled to the possession thereof is contemplated before passing an order under Sec. 452 or 457, no such enquiry is required to be held before passing the order u/S. 451 regarding the interim supardgi of the case property or property seized by the police in the relevant case. Thus an element of finality seems to have been attached in the orders contemplated to be passed u/S. 457 Cr.P.C. But taking into account the practice prevalent so far revision applications u/S. 397 and petitions u/S. 482 Cr.P.C. have all through been and are being entertained against orders passed u/S. 457 Cr.P.C. In fact, sometimes the provisions contained in Ss. 457 and 451 seem to be overlapping when the application is moved at a stage when the relevant case is still being investigated by the police but by the time the application comes up for decision by the Court the investigation is completed and a police report is submitted or the order is passed just before the submission of the police report in the case. Looking to all these possibilities orders by the courts are generally passed after holding some sort of inquiry into the respective claims of the parties with regard to the interim custody of possession of the property in the case, though, strictly speaking, order u/S. 451 Cr.P.C. may be passed without conducting inquiry, as held by this Court in the case of Jugal Kishore vs. Babu Lal (3). It is true that hierarchy of Courts must be maintained in seeking reliefs through revisions u/S. 397, though the jurisdiction of the High Court in revisable orders is concurrent with that of the Sessions Judge and repeatedly this Court has stressed over the necessity of not burdening this Court with such revisional work which can legally be done by the Sessions Judges concerned and that course would be more convenient and less expensive for the parties. But since an order passed u/S. 457 Cr.P.C. may, in the circumstances pointed out above, be challenged u/S. 482 Cr.P.C. without it being examined u/S. 397 by the Revisional Court and also because this Court has already heard the present matter at considerable length I do not think that it would be desirable that this matter be sent back to the concerned Sessions Judge. The legality and validity of the impugned order with reference to the question of miscarriage of justice to the aggrieved party, if the impugned order is allowed to remain in force, should now, I think, be considered by this Court. (7). On merits of the case Dr. Tiwari vehemently urged that the learned Magistrate seems to have been much influenced by the fact that the registration of the vehicle stands in the name of Matadin Respondent though it could not be disputed at his stage that the petitioner was in lawful possession of the vehicle at the time of its seizure by the police in this case. Dr. Tiwari pointed out at the over- whelming evidence which, according to the learned counsel, speaks volumes of continued lawful possession of the petitioner over the vehicle right from the day the same came into existence and was commenced to be plied on road and submitted that in the face of such unchallengeable facts on the record before him the learned Magistrate should not have simply gone by the fact that Matadin Resp. was the Registered owner of the vehicle and hence entitled to its interim possession during the pendency of the case. was the Registered owner of the vehicle and hence entitled to its interim possession during the pendency of the case. He submitted that under the provisions of the Motor Vehicles Act the vehicle is registered in the name of a particular person for the purposes of charge of fees or taxes or to realise the amount of compensation in case of damages caused to third persons due to accidents or other lapses on the part of the person driving the vehicle at the relevant time and at the most such registration may be an indicator to the ownership of the vehicle with the person in whose name it stands registered and may also indicate his de-jure possession. The learned counsel submitted that the provisions contained in Secs. 457/451 talk of de facto lawful possession and such possession being unchallengeably with the petitioner at the relevant time she was and not her father entitled to the possession thereof. It was submitted that the petitioner had incurred a liability of about 9 Laks rupees in regard to the vehicle in question and her deprivation from the possession of the vehicle in consequence of the impugned order would cause great injustice to her physically and financially. (8). Mr. Rathore, on the other hand, submitted that admittedly the Respondent was the registered owner of the vehicle and in that capacity he carried all the responsibilities and liabilities under the provisions of the Motor Vehicles Act and other allied enactments. The learned counsel pointed out that the loan was taken in Matadins name, the insurance policy was obtained in his name, the Bank slips were issued in his name the road tax and other fees were paid in his name. Therefore, urged Mr. Rathore, the learned Magistrate cannot be said to have exercised the jurisdiction vested in him in an arbitrary way. The learned counsel emphasised that registered owner of the vehicle is to be preferred for the interim supardgi thereof u/Sec. 457 or u/Sec. 451 to an unregistered owner as, looking to the provisions of the Motor Vehicles Act, a vehicle which is registered in the name of a particular person cannot be so used or plied as makes the registered owner liable for the acts of commission or omission of the other. (9). (9). I have given my thoughtful consideration to the submissions advanced before me by the learned counsel for the parties and have examined the impugned order in the light of the material available on the record of the lower Court. Prima facie there is more than sufficient evidence in the writing written and signed by Matadin Respondent in favour of the petitioner, the accounts maintained, the insurance policies, road-tax and penalties payment slips, Bank accounts and re-payment entries and slips, admissions of the Respondent Matadin contained in the applications and complaints moved by him before the Magistrate at Ratangarh, all coming from the possession of the petitioner that though the loan for purchase of the vehicle was raised from the Bank in the name of the father-respondent yet the body of the vehicle was got manufactured by the daughter petitioner and the Bus was being plied by her through the agency of Deepak Travels at the relevant time. The affidavits of Randhir Singh driver and Hazari Lal, proprietor of Deepak Agencies prima facie support the version advanced by the petitioner. In his own application and the complaint filed by Matadin Respondent in the Court of the Magistrate at Ratangarh he himself had stated that he did not obtain the possession of the vehicle in pursuance of the order of the Magistrate at Ratangarh. The vehicle in the present case was seized from the possession of Randhir Singh driver as stated by him in para 1 of his affidavit. The affidavit now filed by him before this Court denying his earlier statement and not before the Magistrate can hardly affect the position of the facts stated above. There was thus prima facie good material on the record before the learned Magistrate to show that the petitioner had been in permissible and lawful possession of the vehicle at the time of its seizure by the police. As against the voluminous evidence produced by the petitioner to show her lawful possession over the vehicle in question in order to prove her claim to possess the same on supardgi during the period of the pendency of the trial of the case, if any, the sole reliance of Matadin Respondent was on the registration of the vehicle being in his name. (10). (10). In cases of vehicles, requiring registration under the provisions of the Motor Vehicles Act for the purposes of making use of such vehicles, the ownership to such vehicle may ordinarily be determined with reference to the registration of the vehicle in the name of a person. In fact the provisions contained in the said Act and the Rules made thereunder make it incumbent on a purchaser of a motor vehicle by transfer from the other to get the fact of transfer recorded in the Registration Certificate. It is necessary to do so in order to discharge the liabilities arising under the provisions of the said Act or the Rules framed thereunder or some other enactments in the course of making use of the vehicle. But in order to make use of the vehicle what is necessary is that it should be registered in the name of some person. This is the requirement for facilitating the realisation of the taxes, dues, fees, etc. accruing or arising against the vehicle under the provisions of the Motor Vehicles Act and the Rules framed thereunder. This requirement does not suggest that a vehicle, which is registered in accordance with the relevant provisions of the Act and the Rules made thereunder, cannot be put to use or be made use of by a person other than the registered owner. Registration certificate, in whosoevers name it might be, is necessary to make use of the vehicle and a drivers licence is necessary to be had by the person to drive the vehicle on the road. It can, therefore, legitimately be argued that a registered vehicle may be made use of by a person who is not the registered owner of the vehicle, though the liability for taxes fees, penalties compensation etc. ensuing from the contravention or violation of the relevant provisions of the Act or the Rules framed thereunder or arising under other statutes from the acts of omission or commission by persons other than the registered owner would fall on the shoulder of the registered owner. A motor vehicle being a movable property needs no registration for affecting its transfer by one person in favour of the other. A motor vehicle being a movable property needs no registration for affecting its transfer by one person in favour of the other. If being aware of the consequences flowing from the acts of omission or commission of the proposed purchaser or other person a registered owner of the vehicle chooses in his discretion or wisdom to part with the possession of the vehicle in favour of the other without getting the transfer recorded in the relevant register, he does so on his own risk. A transferee of the vehicle having received or obtained the transfer of the vehicle in good faith and/or for value, gets lawful possession of the vehicle and his such possession cannot be equated with that of the illegal or unlawful possession of a person who obtains possession of the same in breach of the provisions of a law in force. Though the normal rule should be that in entrusting the interim supardgi of a vehicle, registered under the provisions of the Motor Vehicles Act, primacy and preference should be given to the person who is the registered owner of such vehicle yet it would not be correct to say that any other person who had come to possess the vehicle in a lawful manner without himself yet becoming the registered owner thereof cannot claim possession thereof on his interim supardgi under the provisions of Sec. 457/451 Cr.P.C. In my opinion, if a person other than the registered owner came to possess a motor vehicle in good faith, under some agreement, and/or for consideration he gets permissive possession and his possession would be lawful and not unlawful possession. Such a person can legitimately prefer his claim to possess the vehicle on his interim supardgi u/Ss. 457/451 Cr.P.C. Such a view seems to have found favour with the Bombay High Court in Ghafoor Bai Nabhu Bhai Tawar vs. Moti Ram Keshao Rao Bangiwar & Ors. (4), Orissa High Court in Gadhadhar Baliar Singh vs. Sriniwas Misra & Ors. (5), Himachal Pradesh High Court in Sardara Singh & Anr. 457/451 Cr.P.C. Such a view seems to have found favour with the Bombay High Court in Ghafoor Bai Nabhu Bhai Tawar vs. Moti Ram Keshao Rao Bangiwar & Ors. (4), Orissa High Court in Gadhadhar Baliar Singh vs. Sriniwas Misra & Ors. (5), Himachal Pradesh High Court in Sardara Singh & Anr. vs. Nur Ahmed (6), Makbool Khan vs. State of Rajasthan (7), though Andhra Pradesh High Court in Kavuluri Siddha Reddy vs. Banthala Ranga Swami Naidu (8), Karnatak High Court in State of Karnataka vs. Dhulappa (9), Gujrat High Court in Nandi Ram vs. State of Gujrat (10) and Allahabad High Court in R.K. Jaiswal vs. State of U.P. (11) appear to have preferred the view that generally the registered owner of the vehicle should be preferred to any other claimant in the matter of the interim supardgi of the vehicle u/S. 457 Cr.P.C. The facts in the case of Jugal Kishore vs. Babu Lal (supra) were quite distinguishable from the obtaining in the case presently before me. (11). To sum up it is held that since the petitioner was in lawful and permissive possession of the vehicle claiming title of the vehicle in her also, and the vehicle was being plied by her from the day it was manufactured, she was the better person to be given the possession thereof u/S. 457/451 Cr.P.C. than to her father Matadin Respondent. That being so the impugned order is set aside and it is directed that the vehicle in question would be given on the interim supardgi of Kanta Toshan (Smt.) petitioner u/Ss. 457/451 Cr.P.C. on the same terms and conditions as were stipulated in the impugned order. The petition stands allowed.