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Himachal Pradesh High Court · body

2002 DIGILAW 183 (HP)

SATYA CHAUDHARY v. STATE OF HIMACHAL PRADESH

2002-07-03

R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J.—The petitioner Smt. Satya Chaudhary has preferred the present revision petition against the order dated 9.1.2002 of the learned Additional Sessions Judge, Shimla in appeal affirming the order dated 26.5.2001 passed by the learned Judicial Magistrate 1st Class (IV), Shimla directing the release of vehicle No. H.P.-01 -0926 in favour of respondent No. 2 Inderjeet Singh Kaundal in exercise of the powers under Section 452, Code of Criminal Procedure. 2. Briefly stated, the facts giving rise to the present petition may be thus stated. One Shri Vijay Vishal son of the petitioner, is the registered owner of the vehicle H.R-01-0926. The petitioner is also the general attorney of her said son Vijay Vishal. The registered owner vide agreement dated 23.9.1997 sold the said vehicle to respondent No. 2 for a total consideration of Rs. 1,10,997/-. Out of such sale consideration, a sum of Rs. 44,000/- was paid to and received by the registered owner Vijay Vishal. The balance sale consideration, as per the terms of the agreement, was to be paid by respondent No. 2 to the Canara Bank, The Mall, Shimla, by way of instalments towards the discharge of the loan taken by the registered owner from the said Bank. The possession of the vehicle was handed over by the registered owner to the respondent No. 2. It was stipulated in the agreement that in the event of failure of respondent No. 2 to pay the four successive instalments to the Bank, the registered owner would have the right to take back the vehicle from him and the amount already paid towards the sale consideration would stand forfeited. Since the respondent No. 2 failed to pay four successive instalments to the Bank, in terms of the agreement the petitioner acting as attorney for and on behalf of the registered owner took possession of the vehicle on 3.9.1998 from Naldehra where the said vehicle had been parked by the respondent No. 2. 3. On the basis of the report made by respondent No. 2, a case for the offence under Section 379, Indian Penal Code, came to be registered on 6.9.1998 at Police Station, Dhalli, vide F.I.R. No. 172 of 1998. 4. During the course of investigation, the registered owner through the petitioner approached learned Magistrate for the release of the vehicle which had been seized by the police. 4. During the course of investigation, the registered owner through the petitioner approached learned Magistrate for the release of the vehicle which had been seized by the police. The learned Magistrate, it appears without notice to respondent No. 2 vide order dated 17.9.1998 directed the release of the vehicle to the registered owner on "Sapurdari" on his executing a bond to the tune of Rs. 2,00,000/-. 5. Respondent No. 2 went up in revision against the order dated 17.9.1998 of the learned Magistrate. The learned Sessions Judge, Shimla on 1.12.1998 allowed the revision and after setting aside the order dated 17.9.1998 of the learned Magistrate directed that the possession of the vehicle be delivered to respondent No. 2. Aggrieved by the order dated 1.12.1998 passed in revision by the learned Sessions Judge, the registered owner Vijay Vishal approached this Court by way of a petition under Section 482, Code of Criminal Procedure read with Article 227 of the Constitution of India, being Cr.M.P.(M) No. 987 of 1998. Such petition was dismissed by a learned Single Judge of this Court on 12.1.2001. The order dated 1.12.1998 of the learned Sessions Judge was thus upheld. 6. The petitioner was prosecuted for the offence under Section*379, Indian Penal Code, in Criminal Case No. 71 /2 of 1999. The learned Judicial Magistrate 1st Class (IV), Shimla vide judgment dated 26.5.2001 acquitted the petitioner of the offence. While acquitting the petitioner, in so far as the vehicle is concerned, the learned Magistrate, observed and directed: "......in view of the material on record, I am of the view that Inderjeet Singh Kaundal is entitled to possession of the vehicle at this stage. Affected party, if so desires, is at liberty to establish his/her claim by filing regular Civil Suit" 7. Aggrieved by the abovesaid order passed by the learned Magistrate purportedly under Section 452, Code of Criminal Procedure, the petitioner in her individual capacity preferred an appeal before the learned Additional Sessions Judge, Shimla, being Criminal Appeal No. 12-S/10 of 2001. Such appeal was dismissed vide the impugned order dated 9.1.2002. Hence the present revision petition. 8. At the very outset an objection as to the locus standi of the petitioner to assail the order dated 26.5.2001 of the learned Magistrate was raised on behalf of the respondents. It was contended that the petitioner is not the owner of the vehicle in question. Hence the present revision petition. 8. At the very outset an objection as to the locus standi of the petitioner to assail the order dated 26.5.2001 of the learned Magistrate was raised on behalf of the respondents. It was contended that the petitioner is not the owner of the vehicle in question. Her son is the registered owner, who could have been aggrieved by the order dated 26.5.2001 directing the release of vehicle in favour of respondent No. 2. Neither the appeal before the lower Appellate Court nor the present revision at the instance of the petitioner was/is maintainable. 9. The learned Counsel for the petitioner, on the other hand, raised twofold contentions, firstly that the petitioner being the attorney of her son, the registered owner of the vehicle, is competent and has the locus standi, and secondly, the vehicle was seized by the police from her possession and as such she is the person aggrieved by the order dated 26.5.2001 of the learned Magistrate. 10. Even though the petitioner is the attorney of her son Vijay Vishal, the registered owner of the vehicle, it is significant to note that neither the appeal before the learned first Appellate Court nor the present petition has been filed by the petitioner for and on behalf of her son. The same have been filed by the petitioner in her own individual name. It is well settled that an attorney/agent cannot sue in his/her own name. An action has to be brought in the name of the principal. Since neither the appeal nor the present petition has been preferred in the name of the principal, the same are bad and not maintainable. 11. There is no denying that the vehicle was seized by the police from the possession of the petitioner. The possession of the petitioner in respect of the vehicle in question was not in her. own right. Her possession was as an agent for and on behalf of her son. The possession of an agent for all purposes is that of the principal. The registered owner Vijay Vishal thus would be deemed to be in possession of the vehicle in question through his attorney, namely, the petitioner. own right. Her possession was as an agent for and on behalf of her son. The possession of an agent for all purposes is that of the principal. The registered owner Vijay Vishal thus would be deemed to be in possession of the vehicle in question through his attorney, namely, the petitioner. Therefore, the seizure of the vehicle by the police would be deemed to be from the possession of such registered owner and he would be the person aggrieved by the order dated 26.5.2001 of the learned Magistrate. 12. For the reasons stated above, the present revision petition is dismissed. The parties would be at liberty to get their title to the vehicle in question established from a Civil Court.-