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Himachal Pradesh High Court · body

2022 DIGILAW 26 (HP)

Rakesh Kumar S/o Sh. Sohan Lal v. State Of H. P.

2022-01-07

VIVEK SINGH THAKUR

body2022
JUDGMENT : Petitioner herein is registered owner of bus No. HP-79-7719 purchased for plying on route Kandher-Bagga-Bilaspur via Kharshi and Baga-Bilaspur via Panjgain 1 RT each daily as per route permit granted by the Authority. He has approached this Court being aggrieved by impugned order dated 21.9.2021 passed by Judicial Magistrate Fist Class, Bilaspur, District Bilaspur, H.P. (herein after referred to as the “Magistrate”) , whereby application preferred by petitioner, under Section 457 Cr.P.C. filed for release of bus along with its key and documents on spurdari, has been dismissed by observing that question of ownership of vehicle is in dispute and investigation in this regard is pending and, therefore, any interim order regarding ownership of vehicle would affect ongoing investigation which is beyond the domain of the Magistrate and further that interim custody of the vehicle during pending inquiry, investigation or trial can be given only when there is no dispute qua its ownership or rightful claim and, therefore, for dispute of ownership in present case, application was dismissed without going into merits of the case. 2. Undisputed facts in present case are that petitioner is registered owner of bus and route permit has been granted by the Regional Transport Authority in his favour to ply the said bus. In January, 2021 an oral agreement to sell the bus along with route permit was arrived at between the petitioner (registered owner) and respondent No. 2 (purchaser), whereby registered owner had agreed to transfer the bus along with route permit for a consideration of 18,09,000/- and bus was handed over to respondent No. 2 on 29.1.2021 and since 30.1.2021 till its possession was taken by the Police, it was being plied by and was in possession of respondent No. 2. 3. It is also an admitted fact that on 26.5.2021, petitioner had lodged a complaint in Police Station Bagga, which was recorded as GDD No. 020 dated 26.5.2021 and in inquiry pursuant thereto, it was concluded by the Police that dispute between the parties was of civil nature regarding payment and receipt of amount in furtherance to their oral agreement to sell and purchase the bus and, therefore, parties were directed to take appropriate steps in the Court to resolve the dispute. 4. 4. It is also an undisputed fact that petitioner had approached the Superintendent of Police, Bilaspur on 7.6.2021 by submitting a complaint and on investigation and verification thereof, through concerned Police Station Barmana, it was concluded that it was a matter of civil dispute related to payment and receipt of consideration of sale. Thereafter petitioner had approached the Magistrate under Section 156(3) of Cr.P.C. and in furtherance to the order passed therein, FIR No. 118 of 2021 was registered in Police Station Barmana under Sections 379, 424 and 506 IPC. Claim of the petitioner was that on 8.5.2021 constructive possession of the bus was handed over to petitioner by respondent No.2 by handing over all original documents and key of the bus, but thereafter respondent No. 2 had taken the bus to unknown place to hide it. It was claim of the petitioner that Police had refused to register an FIR merely stating that the dispute is of civil nature, whereas according to petitioner respondent No. 2 has committed offence of theft by taking the bus somewhere else soon after handing over its constructive possession to petitioner and, therefore, it was alleged that respondent No. 2 has committed an offence of theft by taking away the vehicle from the constrictive possession of the petitioner. 5. As per status report submitted by the Police during investigation in the aforesaid FIR, on 12.8.2021, petitioner had produced copies of documents of bus, i.e. Registration Certificate, Insurance Cover Note and route permit. As per Registration Certificate, petitioner is registered owner of the bus. On 30.8.2021, respondent No. 2 had produced bus along with key and three screen shots of online payment made to the petitioner, which were taken in possession and seized by the Police. On verification by the Police, it has been found that respondent No. 2 has transferred 91,000/- in favour of petitioner through online payment. 6. According to the petitioner and respondent No. 2 as well as Police report, petitioner and respondent No. 2, in presence of a Temple Priest Baseria Ram, had entered into an oral agreement to sell and purchase the bus in reference. 6. According to the petitioner and respondent No. 2 as well as Police report, petitioner and respondent No. 2, in presence of a Temple Priest Baseria Ram, had entered into an oral agreement to sell and purchase the bus in reference. As per petitioner he had agreed to sell and respondent No. 2 had agreed to purchase the bus along with route permit for consideration of 18,09,000/- and on payment of 5,00,000/-, possession of the bus was to be transferred to respondent No. 2 and on receipt of 10,00,000/-, the agreement was to be reduced into writing and on receipt of entire amount of consideration, bus was to be transferred in the name of respondent No. 2 along with route permit. Petitioner claims that according to these terms and conditions, respondent No. 2 had paid 5,000/- as advance money in cash, whereas as per respondent No. 2 he had paid 50,000/- in cash. 7. According to petitioner possession of bus was to be transferred after receipt of 5,00,000/-, whereas according to respondent No. 2 ownership of bus was to be transferred after payment of 4,50,000/- and remaining amount was consideration for transfer of route permit. As per petitioner, respondent No. 2 has paid only 2,50,000/- in cash and through online payment, whereas according to respondent No. 2 till 29.1.2021, he had paid 5,17,000/- in cash and through online payment, out of which 41,000/- is lying with Baseria Ram and original documents of the bus were with the petitioner. As per statement of Baseria Ram, respondent No. 2 has paid 3,50,000/- by cash and through online payment to the petitioner and 41,000/- were lying with him. It is also claim of respondent No. 2 that he has spent 1,50,000/- for repair of the bus for plying it on road. 8. It is an admitted fact that on 29.1.2021, bus was handed over to respondent No. 2, but without preparing any document in writing regarding sale contract. It is also claim of respondent No. 2 that he has spent 1,50,000/- for repair of the bus for plying it on road. 8. It is an admitted fact that on 29.1.2021, bus was handed over to respondent No. 2, but without preparing any document in writing regarding sale contract. Respondent No. 2 continued to ply the bus on the route till month of May, 2021 and for non-payment of further payment by respondent No. 2, the dispute arose between the parties and parties approached Baseria Ram, but before him no resolution of dispute could be arrived at and petitioner had approached Police Station Baga with report of theft of the bus, but the matter was found civil nature and Police did not lodge the FIR, but recorded only daily diary report and advised the parties to approach the Court for resolution of dispute. Thereafter respondent No. 2 parked the bus at Rani Kotla and petitioner approached the Superintendent of Police, Bilaspur on 7.6.2021 and subsequently Judicial Magistrate, First Class, Bilaspur for lodging of FIR, and FIR came to be registered. As per status report, final report under Section 173 Cr.P.C. has been submitted to the concerned Magistrate with closure report with finding that no offence has been found to be committed and the dispute is of civil nature. 9. Learned counsel for the petitioner has submitted that bus and route permit has not been transferred to respondent No. 2 and petitioner being registered owner of the bus and holder of route permit thereof, is entitled for release of bus in his favour as respondent No. 2 has failed to make payment, agreed to be made for purchasing bus and route permit, and had handed over constructive possession of the bus to the petitioner, but thereafter respondent No. 2 committed an offence of theft by hiding the bus after handing over the constructive possession to the real owner (petitioner). 10. To substantiate the entitlement for release of bus in favour of petitioner, learned counsel for the petitioner has referred judgment of this Court in Sukhvinder Singh Vs. State of Himachal Pradesh and others, reported in 2020 (1) Shim. L. C. 365, wherein vehicle, impugned by Police in a criminal case, was released in favour of registered owner. 11. 10. To substantiate the entitlement for release of bus in favour of petitioner, learned counsel for the petitioner has referred judgment of this Court in Sukhvinder Singh Vs. State of Himachal Pradesh and others, reported in 2020 (1) Shim. L. C. 365, wherein vehicle, impugned by Police in a criminal case, was released in favour of registered owner. 11. Learned counsel for respondent No. 2 has submitted that possession of the bus has been taken by the Police from respondent No. 2, who was in possession of the same under lawful agreement to sell arrived at between the parties and, therefore, keeping in view the nature of dispute, which is civil in nature, bus deserves to be released in favour of respondent No. 2. To substantiate his claim, he has referred Vijay Vishal Vs. Inder Singh Kaundal and another, 2001 (1) Shim. L.C. 491; Ram Chand Vs. State of H.P. and others, 2005 (2) Shim. L.C. 18; Paidi Subbayya, AIR 1939 Madras 905; Khuraijam Jugeshwar Singh and another Vs. Smt. Chanabam Ongbi Tomu Devi and another, AIR 1968 Manipur 29 and Trimex International Fze Limited Dubai Vs. Vedanta Aluminum Limited, India, (2010) 3 SCC 1 . 12. Sale of goods, transfer of property and transfer of possession of property under oral agreement/contract is not forbidden under law, but subject to certain limitations and relevant provisions of law. 13. The Supreme Court in Smt. Sohbatdei Vs. Deviplal and others, (1972) 3 SCC 495 has held that where oral agreement between two parties, executed for sale of suit property, is clear and certain or capable of being certain, then sale of the suit property to third person, having knowledge of such agreement, is illegal and liable to be set aside and accordingly decree of suit preferred by the purchaser of the suit property on the basis of oral agreement passed by the trial Court was upheld by the Supreme Court. 14. In Brij Mohan and others Vs. 14. In Brij Mohan and others Vs. Sugra Begum and others reported in (1990) 4 SCC 147 , it has been held that there is no requirement of law that an agreement or contract of sale of immoveable property should only be in writing, with rider that however, in a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immoveable property on the basis of oral agreement alone, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immoveable property and whether there was such a concluded oral contract or not, would be a question of fact to be to determined in the facts and circumstances of each individual case. The Supreme Court has re-iterated this ratio it in Ambalal Sarabhai Enterprise Ltd. Vs. KS Infraspace LLP Ltd., (2020) 5 SCC 410 . 15. In Trimex International Fze Limited Dubai Vs. Vedanta Aluminum Limited, India, (2010) 3 SCC 1 , the Supreme Court has observed that once the contract is concluded orally or in writing, the mere fact that a formal contract has to be prepared and initialled by the parties would not affect either the acceptance of contract so entered into or implementation thereof, even if the formal contract has never been initialled. 16. In V.R. Sudhakara Rao and others Vs. T.V. Kameswari, (2007) 6 SCC 650 , the Supreme Court has held that in case of oral contract there is necessity of proof of fully concluded contract and essential terms thereof, and the burden thereof lies upon the person pleading his right on the basis of oral contract. 17. The Supreme Court in K. Nanjappa (dead) by legal representatives Vs. R.A. Hameed alias Ameersab (dead) by legal representatives and others (2016) 1 SCC 762 by putting reliance on judgments in Shankarlal Narayandas Mundade Vs. New Mofussil Co. Ltd., AIR 1946 PC 97 and Kollipara Sriramulu Vs. T. Aswatha Narayana AIR 1968 SC 1028 , has concluded that a decree for specific performance can be granted on the basis of oral contract and that an oral agreement with reference to a future formal contract, will not prevent a binding bargain between the parties. New Mofussil Co. Ltd., AIR 1946 PC 97 and Kollipara Sriramulu Vs. T. Aswatha Narayana AIR 1968 SC 1028 , has concluded that a decree for specific performance can be granted on the basis of oral contract and that an oral agreement with reference to a future formal contract, will not prevent a binding bargain between the parties. Ratio of Brij Mohan’s case supra has been reiterated by observing that however in a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immoveable property on the basis of an oral agreement or a written contract heavy burden lies on the plaintiff to prove that there was consensuses ad idem between the parties for the concluded agreement for sale of immoveable property whether there was such a concluded contract or not would be question of fact to be determined in the facts and circumstances of each individual case. 18. The aforesaid pronouncement of the Apex Court recognizes the oral contact even with respect to immoveable property. Property in present case, the bus, is moveable property. 19. Section 9 of Transfer of Property Act, 1882, provides that a transfer of property may be made without writing in every case in which a writing is not expressly required by law. 20. Sections 17 and 18 of The Indian Registration Act, 1908, as applicable to Himachal Pradesh, provides optional registration of instruments (other than Wills), which purport or operate to create, declare, assign, limit or extinguish any right, title or interest, to or in movable property and, therefore, contract to sell an movable property is not a compulsory registerable document and, therefore, oral contract/agreement to sell of movable property is not prohibited under law. 21. Combined reading of Sections 8 to 10 of The Contract Act, 1872, also clearly indicates that oral agreement/contract is also recognized under the Contract Act, as Section 8 of this Act provides that performance of a condition of a proposal, or the acceptance of any consideration for a reciprocal promise, which may be offered with a proposal, is an acceptance of proposal. Such proposal or acceptance can be made otherwise than in words and such promise is said to be implied promise. Such proposal or acceptance can be made otherwise than in words and such promise is said to be implied promise. All agreements are contract if they are made by the free consent of the parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. In present case parties have entered into an oral contract for sale of bus along with route permit with free consent, who are competent to contract and the oral contract is for a lawful consideration with a lawful object, which is not expressly declared to be void. 22. Section 2(7) of the Sale of Goods Act, 1930 defines that every kind of movable property other than actionable claims and money is “goods” and, therefore, bus is also goods as defined in the Sale of Goods Act. Sale of Goods Act does not provide the compulsory written contract for sale and purchase of goods. Sale of Goods Act provides provisions describing formation of contract, effect thereof and also determining the right and duties of seller and purchaser and their lien to the property in possession of seller or in a transferred possession of the property to the purchaser. Section 45 of the Sale of Goods Act defines “unpaid seller” by stating that seller of goods is deemed to be an ‘unpaid seller’ when the whole of the price has not been paid or tendered and rights of ‘unpaid seller’, sellers lien and termination of lien have been provided in Sections 46 to 49 of this Act. Section 60 of this Act provides repudiation of contract before due date whereas Section 58 provides that suit for specific performance is also maintainable for breach of contract of sale, under this Act. 23. Though, the route permit cannot be sold by permit holder, but transfer thereof is permissible with permission of the competent authority, subject to certain condition requisite for that, therefore, transfer of permit is not impermissible or forbidden by law. The contract between the parties in present case is not an agreement forbidden by law or void under any provisions of the Contract Act. In pursuance to this oral contract parties have acted upon by performing certain acts like making and receiving payment and handing over the possession of the bus. The contract between the parties in present case is not an agreement forbidden by law or void under any provisions of the Contract Act. In pursuance to this oral contract parties have acted upon by performing certain acts like making and receiving payment and handing over the possession of the bus. From aforesaid discussion, it is undoubted that there was/is a valid legal oral contract between petitioner and respondent No. 2 for sale of bus along with its route permit and respondent No. 2 was in possession of the bus under a lawful oral contract. 24. In Paidi Subbayya’ case, (AIR 1939 Madras 905) it has been held that where in a case under Section 379 of IPC, against certain persons in respect of certain property, the police have seized the property and after investigation referred the case as one of civil nature and thereupon the case is struck off from the Police file, an order that property be returned to the complainant is wrong, rather property must be returned to the persons from whom it was seized. 25. Referring Purshottam Das Banarsi Das Vs. State, AIR 1952 Allahabad 470; Koijam Tombi Singh Vs. Pisak Singh, AIR 1952 Manipur 6 and Har Dev Vs. State, AIR 1952 Rajasthan, 148, it has been concluded in Khuraijam Jugeswar Singh’s ( AIR 1968 Manipur 29 ) case that once the Magistrate ascertains the person, from whose possession the property was seized and whose possession was not unlawful, then the Magistrate must hold him to be entitled to the possession of the same, as the Magistrate is not a Civil court and has no power to decide any dispute about the title of the property. Further that Criminal Procedure Code does not authorise the Magistrate to decide which party is the rightful owner of the property and the enquiry of the Magistrate is limited to finding which party is entitled to the possession of the property. 26. Learned Single Judge of this Court in Vijay Vishal’s case (2001 (1) Sim. Further that Criminal Procedure Code does not authorise the Magistrate to decide which party is the rightful owner of the property and the enquiry of the Magistrate is limited to finding which party is entitled to the possession of the property. 26. Learned Single Judge of this Court in Vijay Vishal’s case (2001 (1) Sim. L. C 491) has held that under Section 457 of Code of Criminal Procedure the Magistrate has to make an order in respect to disposal or delivery of the property seized by the Police and the person entitled to the possession thereof, and the Magistrate has to exercise judicial discretion by holding inquiry of summary nature with a view to determine as to who is the person entitled to the possession of the property and if there is evidence on record that registered owner has sold the vehicle by some agreement and handed over the possession thereof, the Magistrate must consider the said agreement and also its effect in respect of ownership of the vehicle in order to determine as to who is the person entitled to the possession thereof. 27. In my opinion pronouncement in case of Ram Chand, (2005 (2) Shim. L. C 18) is not applicable in present case, as in that case release of vehicle, in favour of financer, which was already released in favour of another person on successfully establishing hi claim and right for release of the vehicle on the basis of agreement and possession thereof, was declared to be perverse and absolutely illegal, which is not the issue involved in present case. However, in the said judgment, decision dated 13.12.2001 passed by the High Court in Cr. Revision No. 8 of 2001 has been referred, whereby, release of vehicle in favour of a person, not the registered owner but having possession of the vehicle under lawful agreement, ordered by the trial Magistrate, was affirmed by the High Court. 28. Judgment in Sukhvinder Singh’s (2020 (1) Shim. LC 365) case is also not applicable in the facts and circumstances of the present case. In Sukhvinder Singh’s case petitioner was not only the registered owner, but also in possession of the vehicle and there was a dispute between two partners, i.e. registered owner of the vehicle and the complainant. 28. Judgment in Sukhvinder Singh’s (2020 (1) Shim. LC 365) case is also not applicable in the facts and circumstances of the present case. In Sukhvinder Singh’s case petitioner was not only the registered owner, but also in possession of the vehicle and there was a dispute between two partners, i.e. registered owner of the vehicle and the complainant. The complainant was alleging that vehicle was purchased by investment of money provided by himt, but has been fraudulently registered by the petitioner therein in his own name, whereas during investigation it had come on record in the statement of previous owner of the vehicle that 55,000/- were paid by the petitioner Sukhvinder Singh and ownership of vehicle was registered in the name of Sukhvinder Singh on the basis of affidavit sworn by the previous owner. Apparently facts in that case are not similar to the present case. 29. From the aforesaid case law, it emerges that possession of registration certificate in the name of one of the parties will not be sole ground for release of vehicle, which under lawful agreement is in lawful custody of other party and in case in a criminal complaint, inquiry is concluded with finding that dispute is/was of civil nature, then it would be material point of consideration that from whose possession property was taken into custody and seized by the Police. 30. In a dispute of civil nature, a party cannot be permitted to take advantage of seizure of the property by the Police in a criminal case registered at the instance of such person, where ultimately Police inquiry concludes with the finding that dispute is purely civil in nature and is to be adjudicated in Civil Court. In such eventuality, parties have to take recourse of civil remedies as available under law for redressal of their grievances by adjudicating their respective claims with regard to the property. 31. In the facts and circumstances of present case narrated in detail supra, it is held that petitioner is not entitled for release of bus in his favour. The bus deserves to be released in favour of respondent No. 2. 31. In the facts and circumstances of present case narrated in detail supra, it is held that petitioner is not entitled for release of bus in his favour. The bus deserves to be released in favour of respondent No. 2. However, at this stage, it would be relevant to record that in reply filed before the Magistrate, respondent No. 2 has not prayed for release of vehicle in his favour either by filing independent application or praying as such in the reply to the application preferred by the petitioner. In reply to the application filed by the petitioner, it was prayed by respondent No. 2 that application be dismissed and bus in question be not released till the completion of investigation. The Magistrate has dismissed the application of the petitioner on the ground that release of the vehicle would affect ongoing investigation as there was a dispute qua its ownership and rightful claim. Now final report under Section 173 Cr.P.C. stands filed. 32. Respondent No. 2 has also not assailed the order passed by the Magistrate, impugned in present petition. However, in reply to present petition, it has been prayed that bus in question be ordered to be released in his favour. 33. In aforesaid circumstances, petition is dismissed with direction to the Magistrate, in case respondent No. 2 approaches the Court for release of the bus, to pass an appropriate order, in the light of observations made hereinabove, in accordance with law for release of the bus, after giving opportunity of being heard to the petitioner and also keeping in view the pronouncements of the Supreme Court in Sunderbhai Amabalal Desai Vs. State of Gujarat, (2002) 10 SCC 283; General Insurance Council and others Vs. State of Andhra Pradesh and others, (2020) 6 SCC 768 and Smt. Basavva Kom Dyamangouda Patil Vs. State of Mysore and another, (1977) 4 SCC 358 , relevant portion whereof has been referred in Sukhvinder Singh’ case as under:- “10. In case Smt.Basavva Kom Dyamangouda Patil vs. State of Mysore and another reported in (1977)4 SCC 358 dealing with the case related to certain articles belonging to complainant, the subject matter of a theft, recovered by police during investigation, produced before the Court and retained by the Sub Inspector under the directions of the Court, but found stolen and lost on conclusion of trial from the custody of police. The Apex Court has observed that the object and scheme of various provisions of Cr.P.C. appear to be that where the property, which has been the subject matter of an offence, is seized by police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary and as the seizure of the property by police amounts to clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases and it is further held that it is manifest that there may be two stages when the property may be returned to the owner, during any inquiry or trial and this may particularly be necessary where the property concerned is subject to speedy or natural decay and there may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The Apex Court has observed that in a criminal case, the police is always under direct control of the Court and has to take orders from it at every stage of any inquiry or trial, and in this broad sense, therefore, the Court exercise an overall control on the actions of the police officers in every case where it has taken cognizance. It is also observed that object of the Cr.P.C. 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 by passing a just and proper order regarding its disposal. 11. In Sunderbhai Amabalal Desai’s case the Apex Court, dealing with the case of custody and disposal of property pending trial in certain cases and procedure by police upon seizure of property as contained in Sections 451 and 457 of Cr.P.C., after referring Basavva Kom Dyamangouda Patil vs. State of Mysore reported in (1977)4 SCC 358 , has observed that powers under Section 451 Cr.P.C. should be exercised expeditiously and judicially for serving various purposes, which reads as under:- “5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as: (1) for the proper custody pending conclusion of the inquiry or trial; (2) to order it to be sold or otherwise disposed of, after recording such evidence as it thinks necessary; (3) if the property is subject to speedy and natural decay, to dispose of the same. 7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely: 1. owner of the article would not suffer because of its remaining unused or by its misappropriation; 2. court or the police would not be required to keep the article in safe custody; 3. if the proper panchnama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and 4. this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.” 12. The Apex Court while dealing with seized vehicles from time to time by police either in commission of various offences or abandoned vehicles or vehicles which are recovered during investigation of complaint of theft, the Court in above referred Sunderbhai Amabalal Desai’s case has further observed as under:- “17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles. 18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be auctioned by the court. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take possession of the vehicle which is not claimed by the owner or a third person. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle would be taken and detailed panchnama should be prepared.” 13. The Apex Court in General Insurance Council and others vs. State of Andhra Pradesh and others reported in (2010)6 SCC 768 has reiterated aforesaid observations made in Sunderbhai Amabalal Desai’s case and has passed further direction as under:- "(A) Insurer may be permitted to move a separate application for release of the recovered vehicle as soon as it is informed of such recovery before the Jurisdictional Court. Ordinarily, release shall be made within a period of 30 days from the date of the application. The necessary photographs may be taken duly authenticated and certified, and a detailed panchnama may be prepared before such release. (B) The photographs so taken may be used as secondary evidence during trial. Hence, physical production of the vehicle may be dispensed with. (C) Insurer would submit an undertaking/guarantee to remit the proceeds from the sale/auction of the vehicle conducted by the Insurance Company in the event that the Magistrate finally adjudicates that the rightful ownership of the vehicle does not vest with the insurer. The undertaking/guarantee would be furnished at the time of release of the vehicle, pursuant to the application for release of the recovered vehicle. Insistence on personal bonds may be dispensed with looking to the corporate structure of the insurer." 34. Before parting it shall be apt to record that petitioner as well as respondent No. 2 have legal right to avail remedy in competent Court by preferring civil proceedings in accordance with law, for redressal of their grievances including for preservation, possession and plying of the bus by adjudicating their respective claims and counter claims qua the oral contract including right to possess the bus, permit etc. In case such Civil proceedings are initiated, then any order passed therein regarding preservation, possession, seizure or plying etc. of the bus shall prevail over the order passed in criminal proceedings for the reason that final conclusion of criminal case is that dispute between parties is of civil nature. 35. Registered owner may or may not be entitled for release of vehicle seized by Police in criminal case, like present one where Police have concluded that dispute is civil in nature, but at the same time he may be entitled to recover possession of vehicle in Civil Proceedings on conclusion thereof and/or even during pendency of such proceedings also by order/interim order passed by the Civil Court on making out a case for such order/interim order. Therefore, dismissal of this petition shall not come in the way of petitioner in Civil proceedings to claim possession of bus in Civil Court. 36. Even in case of cancellation/closure report submitted under Section 173 Cr.P.C. in an FIR, vehicle shall be released to the appropriate person on furnishing suprdari and surety including undertaking therein that vehicle shall not be transferred, alienated or disposed of without leave of the Court till a reasonable period fixed on the basis of facts and circumstances of the case with further undertaking to produce the vehicle during that time before competent Court as and when directed to do so and further that such release of vehicle shall be subject to further order passed by the Civil Court in Civil proceedings if any, preferred by either party. 37. Respondent No. 2 is not holding any route permit to ply the bus. Therefore, release of vehicle in his favour shall not amount to permit him to drive the vehicle/but on route without any route permit unless permitted by the authorities and/or permit holder in accordance with law. The bus in question shall be plied by owner/possessor by complying provision of law/rules applicable for that. There is no bar to petitioner and respondent No. 2 to reenter into fresh contract or to revive old one by reducing the same into writing in accordance with and as permissible under law, and to resolve the dispute. 38. The bus in question shall be plied by owner/possessor by complying provision of law/rules applicable for that. There is no bar to petitioner and respondent No. 2 to reenter into fresh contract or to revive old one by reducing the same into writing in accordance with and as permissible under law, and to resolve the dispute. 38. For inability to ply the bus for want of route permit/RC etc, there may be possibility that respondent No. 2 may not approach Court for release or before filing an application by respondent No. 2, Registered owner is able to obtain an order for custody/possession of the bus in his favour from competent Civil Court in appropriate Civil proceedings and file an application for release of vehicle on the basis of that. In such eventuality next claim for possession of the bus in present case would be of the Registered owner. Therefore, in case respondent No. 2 does not file an appropriate application before the Magistrate/Duty Magistrate/CJM on or before 31.1.2022, then Registered owner would be entitled to pray for release of vehicle by filing appropriate application. Petitioner is also at liberty to approach Civil Court for possession of bus. 39. In case no party comes forward either for release or to prefer Civil proceeding within a reasonable period, say for two months, the vehicle shall be disposed of by the Magistrate by following the procedure prescribed under Cr.P.C. explained and elaborated by the Supreme Court in pronouncements referred supra. 40. Petition is disposed of in aforesaid terms along with pending application, if any. 41. Parties are permitted to use downloaded copy of this judgment from the High Court Website and concerned authority shall not insist for certified copy, rather it shall verify passing of this judgment from the High Court website or otherwise. 42. Copy of this order also be transmitted to the Magistrate concerned for information and compliance.