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2005 DIGILAW 57 (HP)

RAM CHAND v. STATE OF H. P.

2005-03-21

V.K.GUPTA

body2005
JUDGMENT V.K. Gupta, C.J.—Respondent No. 2 even though served is absent; hence proceeded against ex parte. 2. In this petition order dated 31.8.2004 passed by the learned Additional Chief Judicial Magistrate, Ghumarwin, District Bilaspur, in Case No. 133/4 of 2004/2002 is under challenge whereby the application filed by respondent No. 3 Baldev Raj Kalra under Section 457 of the Criminal Procedure Code was allowed and he was given the custody of vehicle (truck) bearing registration No. HP-38-2588 on certain terms and conditions mentioned in the operative part of that order. Brief facts leading to the filing of the present petition can be summarized as under:— 3. Vehicle No. HP-38-2588 was originally owned by Rattan Singh, who was the father of respondent No. 2. Rattan Singh died and after his death respondent No. 2 Surjeet Singh naturally became his legal heir and successor. Certain disputes had arisen between the petitioner Ram Chand and respondent No. 2 as well as his father Rattan Singh (during his life time) with respect to their liabilities and obligations relating to and arising out of the vehicle in question. The contention of the petitioner was that Rattan Singh had taken a loan of Rs. 1,80,000/- from the petitioner for repair of the vehicle in question, Rs. 1 lac at one point of time and Rs. 80,000/- at another point of time and that Rattan Singh had executed an agreement with the petitioner for return of the amount in question, or in the alternative for sale of the vehicle in favour of the petitioner for a sum of Rs. 1,90,000/-. This agreement apparently was executed on 16.4.2000 between Rattan Singh deceased and the petitioner. In this agreement the parties had agreed that if Rattan Singh would fail to handover all the documents of the vehicle in question within two weeks from 16.4.2000, the petitioner would become the owner of the vehicle. The petitioner perhaps took the possession of the vehicle and dispute having arisen between the petitioner and respondent No. 2, FIR was lodged in Police Station, Bharari, being FIR No. 51/2000. It was lodged on 20.10.2000. On this being done, both the petitioner as well as respondent No. 2 filed individual, separate applications under Section 457, Cr.P.C. for release of the vehicle. Vide order dated 30.12.2000. It was lodged on 20.10.2000. On this being done, both the petitioner as well as respondent No. 2 filed individual, separate applications under Section 457, Cr.P.C. for release of the vehicle. Vide order dated 30.12.2000. passed in Case No. 186/4 of 2000, the learned Additional Chief Judicial Magistrate, Ghumarwin, ordered the release of the vehicle in favour of the petitioner. The basis of the order upon which the learned Magistrate held the petitioner entitled to the release of the vehicle can be called out in the following two paragraphs of his aforesaid judgment, which read thus:— "9. First of all, I would take up the agreement dated 16.4.2000, entered into between Shri Rattan Singh son of Sh. Ganga Ram, r/o Village Narlog, Police Station Bharari, Tehsil Ghumarwin, District Bilaspur, H.R, who is the father of the applicant No. 1 and applicant No. 2 Shri Ram Chand for discussion. The perusal of this agreement shows that Shri Rattan Singh had agreed to sell the truck in question to the applicant No. 2 for Rs. 1,90,000/-. Rs. 1,80,000/- were paid to Sh. Rattan Singh by the applicant No. 2 and Rs. 10,000/- were to be paid at the time, when the truck was to be taken from Shri Rattan Singh. The documents of the vehicle were also handed over at that time. It was also agreed that in case Shri Rattan Singh, would fail to handover the documents of the vehicle to the applicant No. 2 within the period of two months, Sh. Ram Chand shall be the owner of the vehicle in the sum of Rs. 1,80,000/-. As per the report of police, the case under Sections 379, 506 IPC, was registered on the complaint of the applicant No. 1 on 20.10.2000. It is also mentioned by the police that on the same day, the applicant No. 2 had also filed a complaint in the police station, in which he had stated that he had purchased the truck in question from Shri Rattan Singh son of Shri Ganga Singh, the father of applicant No. 1 for Rs. 1,90,000/-. It is also mentioned by the police that on the same day, the applicant No. 2 had also filed a complaint in the police station, in which he had stated that he had purchased the truck in question from Shri Rattan Singh son of Shri Ganga Singh, the father of applicant No. 1 for Rs. 1,90,000/-. It is also mentioned by the police in the report that truck was taken by the applicant No. 2 to his residence, which means that at the time of impounding the present truck by the police, the same was in the possession of the applicant No. 2.1 have carefully gone through the authorities cited by learned Counsel for applicant No. 1. With due respect to the authorities, cited by learned Counsel for applicant No. 1, that these authorities are not applicable in the facts and circumstances of the present case. 10. Here, I would like to refer the judgment of Honble High Court of Himachal Pradesh titled Krishan Lai v. State of H.P. and another (supra). In this authority, Honble Justice Vaidya has held that where the parties had entered into an agreement, that agreement would be base to determine their rights and liabilities. He has also held that possession of the Registration Certificate in the name of one of the parties will not the sole ground for the release of the vehicle, which was under the agreement in the lawful custody of the other party. As per agreement, the truck in question has been sold by the father of the applicant No. 1 to the applicant No. 2 for consideration of Rs. 1,90,000/- and only Rs. 10,000/ - remains to be paid to the seller. It is also mentioned in the agreement that in case the seller Sh. Rattan Singh, will fail to handover the documents of the vehicle to the applicant No. 2, the applicant No. 2, shall be presumed to be the owner of the vehicle. Therefore, it cannot be said at this stage, that applicant No. 2 was in unlawful custody of the vehicle on the relevant date. Rather, the contents of the agreement, and the report of the police show that the truck in question was impounded by the police from the possession of the applicant No. 2. Therefore, it cannot be said at this stage, that applicant No. 2 was in unlawful custody of the vehicle on the relevant date. Rather, the contents of the agreement, and the report of the police show that the truck in question was impounded by the police from the possession of the applicant No. 2. Therefore, the possession of the registration certificate with applicant No. 1, and the registration of criminal case under Sections 379, 506 IPC would not automatically entitled the applicant No. 1 for the release of the aforesaid vehicle.” 4. The aforesaid order dated 30.12.2000 was challenged in this Court, the challenge having been brought by respondent No. 2 Surjeet Singh in Criminal Revision No. 8/2001. On 13.12.2001 this Court dismissed the aforesaid Criminal Revision and upheld the aforesaid order dated 30.12.2000. 5. It was during the pendency of the aforesaid Criminal Revision No. 8/2001 in this Court that respondent No. 3 Baldev Raj Kalra surfaced for the very first time in these proceedings by filing an application in terms of Section 482, Cr.P.C. (in the aforesaid Criminal Revision) for his impleadment as a party-respondent in the Criminal Revision on the ground that Rattan Singh deceased had taken the vehicle in question from respondent No. 3 on hire purchase basis by entering into an agreement to feat effect and that he, on that basis, was entitled to be handed over the custody of the vehicle in question. With respect to the aforesaid application of respondent No. 3 for impleadment in Cri. Revision No. 8/2001, this Court made the following observations in the aforesaid judgment dated 13.12.2001:— "10. The application filed by Baldev Raj Kalra who entered into hire purchase agreement with the petitioner cannot be taken into consideration in these proceedings and he is at liberty to approach the appropriate Court for redressal of his claim against the petitioner as permissible under law. His application is accordingly dismissed." 6. Apparently influenced by the aforesaid observations (erroneously, as it would later turn out to be) respondent No. 3 filed his own application under Section 457, Cr.P.C, and as noticed at the outset, the learned Additional Chief Judicial Magistrate, Ghumarwin, vide impugned order dated 31.8.2004 allowed his said application and ordered the release of the vehicle in his favour, thus in effect and substance superseding the earlier order passed by him on 30.12.2000 in Case No. 186/4 of 2000. Apparently, the learned Additional Chief Judicial Magistrate, Ghumarwin while passing the impugned order dated 31.8.2004 was also influenced by the observations made in para 10 (supra), which he construed (of course erroneously) that this Court had given liberty to respondent No. 3 to file his own application for the release of the vehicle. The following observations in the impugned order being apposite are extracted hereinbelow. These read thus:— ".....It is further submitted that as per the order of Honble High Court as per para No. 10, the applicant was held to be at liberty to approach the Court for the release of the vehicle." 7. I have no hesitation in observing and holding that both the petitioner as well as the learned Court below perhaps misconstrued and misunderstood the observations made in para 10 (supra) of the judgment dated 13.12.2001 passed by this Court in Cri. Rev. No. 8/2001 because this Court had merely permitted respondent No. 3 to approach an appropriate Court for redressal of his claim against Surjeet Singh (petitioner in Cri. Revision No. 8/2001) and that too, as permissible under law. This was misconstrued and misunderstood by them as if to permit respondent No. 3 to file his own application under Section 457, Cr.P.C. for release of the vehicle. This Court granting liberty to respondent No. 3 for redressal of his claim against Surjeet Singh alone could not be construed as granting liberty to respondent No. 3 to file his own application for release of the vehicle because while disposing of Criminal Revision No. 8/2001 vide the aforesaid judgment dated 13.12.2001 this Court had affirmed the order passed by the learned Additional Chief Judicial Magistrate, Ghumarwin passed on 30.12.2000 and had thus clearly held that in the facts and circumstances of the case the petitioner Ram Chand had succeeded in establishing his claim and right for the release of the vehicle, based as the claim and right were on the agreement which had been executed between the petitioner and Rattan Singh, father of respondent No. 2 Surjeet Singh on 16.4.2000. This Court having thus affirmed the aforesaid finding of the learned Additional Chief Judicial Magistrate, it was not open to any Court by misconstruing the observations in para 10 (supra) to have reversed the aforesaid findings and in total derogation thereof to have allowed the release of the vehicle in favour of respondent No. 3.1 am saying so because once the trial Court as well as this Court found that there subsisted an agreement between the petitioner and Rattan Singh and thus correspondingly there accrued a right in and upon the petitioner based on that agreement, no Court subsequently in the same proceedings in the exercise of its criminal jurisdiction could have reversed that finding and substituted another alleged agreement between respondent No. 3 and respondent No. 2 with respect to the same vehicle. To say the least, that was not permissible under law and the observations in para 10 (supra) were confined to permitting respondent No. 3 to seek redressal of his claims against Surjeet Singh as these were permissible under law. 8. For the foregoing reasons, I have no hesitation in holding that the impugned order suffers from perversity on the face of it and is absolutely illegal and, therefore, deserves to be set aside. I accordingly allow this petition and set aside the impugned order with all the consequences. 9. I must hasten to add before parting that it was always open and it shall always be open to respondent No. 3, on the basis of observations made in para 10 (supra) and even otherwise to file a suit for establishing his right and claim qua the vehicle in question in an appropriate Civil Court and in that suit to ask for appropriate reliefs. No order passed by the learned Additional Chief Judicial Magistrate, whether on 31.8.2004 (impugned in this petition) or on 30.12.2000, nor the order passed by this Court on 13.12.2001 shall come in the way of respondent No. 3 in filing the aforesaid suit and in that suit impleading necessary and proper parties, including the petitioner herein (if respondent No. 3 thinks so). If such a course of action is adopted by respondent No. 3 and if such a suit is filed, of course subject to all just exceptions the Civil Court shall decide such a suit on its merits and in accordance with law totally uninfluenced by the observations made by me in this judgment, or any observations made by this Court in Criminal Revision No. 8/2001, or the findings returned or observations made in any of the aforesaid two orders passed by the learned Additional Chief Judicial Magistrate, Ghumarwin. All these observations and findings made by this Court or by the learned Additional Chief Judicial Magistrate were in furtherance of the applications filed under Section 457A Cr.P.C, especially in the nature of criminal proceedings as these were. These observations cannot have any influencing outcome as far as the adjudication of the rights of the parties in civil proceedings are concerned, which adjudication shall be done on the merits of the case and in accordance with law. 10. The petition is allowed with all the consequences. No order as to costs. Cr. M.Ps. No. 486/2004 and 9/2005 11. In view of the disposal of the Criminal Revision, both the applications are also disposed of. Interim order dated 14th September, 2004 shall stand vacated.