Learned single Judge held that the order passed by the Magistrate was an order of interim nature subject to final order and it was interlocutory order which did not decide rights of the parties in any manner. The learned single Judge held that the order passed by the Magistrate did not fall in the category of intermediate order and is covered in the category of interlocutory order and, therefore, not amenable to revisional jurisdiction under Section 397, Cr.P.C. This case is akin to the case under consideration and I have no reason to take a different view of the matter. In addition, it may be pointed out that in Ghafoor Bhai v. Motiram Bongirwar MANU/MH/0320/1977 while construing Section 457, Cr.P.C. it was held that the provisions of Section 457, Cr.P.C. were sufficiently wide so as to cover the case where the Magistrate is called upon to pass an order about disposal of custody of property even during the investigation stage of the matter. This position was approved in Virendra Kumar v. Dilawar Khan (supra) and for this purpose, reference may be made to paragraphs 10, 11 and 12 of the said Judgment which read as under :-
10. This Court, in Ghafoor Bhai Nabbu Bhai Tawar v. Motiram Keshaorao Bongirwar MANU/MH/0320/1977 : 1977 Mh LJ 548, while construing the provisions of Section 457 of the Code of Criminal Procedure, held that by the words ‘and such property is not produced before the Criminal Court during the inquiry or trial’ used in the section, all that the Legislature intended to convey is that the property has not been produced before the Magistrate. Such non-production could be on account of (1) the absence of any inquiry or trial, or (2) though the enquiry or trial is pending, the investigation agency had not yet: produced it in the Court. The Court then held that the provisions of Section 457 of the Code were sufficiently wide so as to cover the case where the Magistrate is called upon to pass an order about disposal or custody of a property even during the investigation stage of the matter.
12. In my view, the contention raised by the learned counsel for the petitioner has merit and has to be accepted. As pointed out by Gadgil, J. in Ghafoor Bhai’s case MANU/MH/0320/1977 (supra), an order may be passed under Section 457 of the Code purely at the stage of investigation or even after the charge-sheet had been filed, but before the property was actually produced before the Court during the trial. In the latter case, any order passed by the Magistrate must necessarily be an interlocutory order subject to the final orders to be passed after the trial has concluded.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Crl. Appln. No. 1249 of 1997
Decided On: 10.03.2001
Prakash Tarachand Sakhre Vs. Ashok Pundloikrao Wajge and Ors.
Hon’ble Judges/Coram:
R.K. Batta, J.
Citation: MANU/MH/1293/2001,2001
CRLJ 3024.
1. The applicant has approached this Court under Section 482, Cr.P.C. for quashing and setting aside the order dated 24-7-1997 of the Additional Sessions Judge, Achalpur in Criminal Revision No. 56 of 1995 as also for quashing order dated 23-6-1995 passed by the Judicial Magistrate, First Class, Achalpur in Misc. Criminal Applications Nos. 121 of 1995 and 130 of 1995. By order dated 23-6-1995 the application filed by the applicant for handing over the vehicle to him on supratnama was rejected, but the application filed by respondent No. 1 for the same purpose was allowed. The trial Court, therefore, ordered that the vehicle in question be delivered to the respondent No. 1 on execution of bond of Rs. 2 lacs with a direction to produce the truck in the Court as and when required. This order was challenged by the applicant in revision before the Sessions Court in which respondent No. 2 raised objection that revision was not maintainable which objection was upheld by the learned Additional Sessions Judge, Achalpur and the revision was dismissed as not maintainable.
2. The applicant is the registered owner of Truck No. MHV-2548. His case is that he took friendly hand loan of Rs. 10,000/-from respondent Ashok and for that he had signed a blank stamp paper in favour of respondent No. 1. The said amount of Rs. 10,000/- was returned, but the blank stamp paper was not returned. However, respondent No. 1 had given assurance that he would tear the same. On 9-6-1995 the respondent No. 1 lodged complaint with police that applicant had committed theft of the truck MHV-2548 which he had purchased from the applicant. Police seized the truck. Respondent No. 1 claimed that he had purchased the truck from applicant for Rs. 90,000/- on 28-12-1994 and that the truck was in his possession. He relied on documents of transfer of Truck executed by the applicant. Learned Additional Sessions Judge found that when the impugned order was passed by the Magistrate, neither inquiry nor trial had started nor property was produced before the Court. He, therefore, held that the order was passed under Section 457, Cr.P.C. which is not revisable.
3. Heard learned Advocate for the applicant and learned APP for the respondent No. 2. Learned Advocate for applicant urged before me that revision against the order of Magistrate was maintainable and the Additional Sessions Judge erred in coming to the conclusion that the revision was not maintainable. Learned Advocate for the applicant relied upon number of authorities in this respect including the Judgments of the Supreme Court in V. C. Shukla v. State MANU/SC/0284/1979 : 1980CriLJ690 ; Amar Nath v. State of Haryana MANU/SC/0068/1977 : 1977CriLJ1891 and Madhu Limaye v. State of Maharashtra MANU/SC/0103/1977 : 1978CriLJ165 . Besides this, reliance was also placed on a Judgment of the Kerala High Court in Joshy v. State MANU/KE/0130/1985 wherein it is held that revision against the order passed under Section 457, Cr.P.C. is maintainable. However, order passed under Section 451, Cr.P.C. being an interlocutory order, is not revisable on account of bar under Section 397(2), Cr.P.C. He also relied upon Bharat Heavy Electricals Ltd. v. State, MANU/AP/0006/1981 wherein it was held by Andhra Pradesh High Court that an order passed under Section 457, Cr.P.C. is not. an interlocutory order as it substantially affects the rights of the parties and as such revision is maintainable. He next placed reliance on Indrakumar Faredun Irani v. State of Maharashtra 1989 Cri LJ 1439 wherein the question of maintainability of revision was not directly in issue/but passing reference was made in paragraph 10 of the Judgment in respect of custody of property, holding that the parties cannot directly approach the High Court and invoke the powers of the High Court under Section 482, Cr.P.C, but it is only when the Magistrate concerned does not exercise the jurisdiction vested in him or exercises it with material irregularity and the Sessions Judge in the revisional powers under Section 399, Cr.P.C. fails to correct the error that the party can approach the High Court under inherent powers under Section 482, Cr.P.C. Learned Advocate for the applicant has also relied upon Praveen Kumar v. State MANU/HP/0064/1989 : (1990) 1 Crimes 670 wherein it is held that the order passed under Section 45, Cr.P.C. is final between the parties and revision is maintainable. Referring to the Judgment of learned single Judge of this Court in Virendrakumar J. Handa v. Dilawarkhan Alij Khan MANU/MH/0216/1991 : 1991(3)BomCR218 wherein it is held that the order under Section 457, Cr.P.C. regarding disposal of property seized passed after filing of charge-sheet, but before property was actually produced before the Court, is interlocutory one subject to final orders to be passed after conclusion of trial and that such order is not appealable under any express provision and being interlocutory order, the same is not revisable in view of bar under Section 397(2), Cr.P.C, it was pointed out by learned counsel for applicant that in the instant case, neither charge-sheet was filed nor the property was produced before the Court and as such, the ruling of the learned single Judge would not be attracted in the facts and circumstances of the case. Finally, learned Advocate for applicant relied upon the Judgment of the Allahabad High Court in Ram Lachhan v. State of U.P. 2000 Cri LJ 2770 which, in my opinion, is not attracted in the facts and circumstances of the case.
4. On the question of maintainability of revision, there is Judgment of learned single Judge of this Court in Liyakat Hussain v. Rajendra (1996) 2 Crimes 549 wherein the truck was seized by the police in Crime No, 57/94 and on seizure of the said vehicle, application came to be filed for the custody of the said truck on supratnama. There was no dispute that the truck was originally registered in the name of applicant in the said case, but it was claimed by the non-applicant therein that he had purchased the said truck from the applicant. The trial Court ordered return of truck to the applicant therein. Learned single Judge noticed that though there Is dispute between the parties as to whether order is passed under Section 451 or Section 457, Cr.P.C, it would not make much difference. Learned single Judge held that the order passed by the Magistrate was an order of interim nature subject to final order and it was interlocutory order which did not decide rights of the parties in any manner. The learned single Judge held that the order passed by the Magistrate did not fall in the category of intermediate order and is covered in the category of interlocutory order and, therefore, not amenable to revisional jurisdiction under Section 397, Cr.P.C. This case is akin to the case under consideration and I have no reason to take a different view of the matter. In addition, it may be pointed out that in Ghafoor Bhai v. Motiram Bongirwar MANU/MH/0320/1977 while construing Section 457, Cr.P.C. it was held that the provisions of Section 457, Cr.P.C. were sufficiently wide so as to cover the case where the Magistrate is called upon to pass an order about disposal of custody of property even during the investigation stage of the matter. This position was approved in Virendra Kumar v. Dilawar Khan (supra) and for this purpose, reference may be made to paragraphs 10, 11 and 12 of the said Judgment which read as under :-
10. This Court, in Ghafoor Bhai Nabbu Bhai Tawar v. Motiram Keshaorao Bongirwar MANU/MH/0320/1977 : 1977 Mh LJ 548, while construing the provisions of Section 457 of the Code of Criminal Procedure, held that by the words ‘and such property is not produced before the Criminal Court during the inquiry or trial’ used in the section, all that the Legislature intended to convey is that the property has not been produced before the Magistrate. Such non-production could be on account of (1) the absence of any inquiry or trial, or (2) though the enquiry or trial is pending, the investigation agency had not yet: produced it in the Court. The Court then held that the provisions of Section 457 of the Code were sufficiently wide so as to cover the case where the Magistrate is called upon to pass an order about disposal or custody of a property even during the investigation stage of the matter.
11. Mr. Chart contends that these authorities clearly point out that it is permissible to the Magistrate to pass an order with regard to the custody of the property even while the investigation is under progress or after the investigation is over and the trial has commenced but before the property is actually produced during the course of the trial. He submits that in the latter case, any order passed by the Magistrate can never be a final order as the trial has yet to commence and the order would necessarily be an interim arrangement pending the trial.
12. In my view, the contention raised by the learned counsel for the petitioner has merit and has to be accepted. As pointed out by Gadgil, J. in Ghafoor Bhai’s case MANU/MH/0320/1977 (supra), an order may be passed under Section 457 of the Code purely at the stage of investigation or even after the charge-sheet had been filed, but before the property was actually produced before the Court during the trial. In the latter case, any order passed by the Magistrate must necessarily be an interlocutory order subject to the final orders to be passed after the trial has concluded.
5. In view of the above position, I am of the opinion that the order passed by the Magistrate was interlocutory order against which revision was not maintainable and the learned Additional Sessions Judge rightly held that revision was not maintainable.
6. On merits of the case, the learned Advocate for applicant, has urged before me that the attached property is required to be returned to a registered owner of the vehicle and in this connection, reliance has been placed on Syed Hafeezulla Pasha v. State of Karnataka, MANU/KA/0030/1986 : 1987 Cri LJ 868; Section Abdul Jabbar v. Khaleel Ahamed 1988 Cri LJ 810 and Sardar Singh v. Nur Ahmed (1991) 3 Crimes 783. In Syed Hafeezulla Pasha v. State of Karnataka and Anr. (supra) it has been held that the registered owner of vehicle is proper person to have custody as against person with whom he has hire purchase agreement. In Section Abdul Jabbar v. Khaleel Ahmed and Ors. (supra), it is held that the petitioner is a registered owner of the vehicle and he is the proper person to whom custody of vehicle is to be entrusted and not to the complainant who claims to have purchased the vehicle. In Sardar Singh and Anr. v. Nur Ahmed (supra) it was held that while releasing property under Section 457, Cr.P.C., the attached vehicle should be returned to the registered owner. According to learned Advocate for the applicant, the applicant was registered owner as on the date of the complaint and even thereafter and in this respect, reliance is placed on continuation of registration in the name of applicant as on 8-6-1995. Learned Advocate for the applicant also urged that the transferee of the vehicle is bound to report transfer within thirty days to the Registering Authority in terms of Section 50 of the Motor Vehicles Act. which was not done by the respondent No. 1 ; that if the vehicle was sold on 28-12-1994, there was no occasion for the applicant to insure the truck on 20-4-1995; the respondent No. 1 applied for transfer of registration after six months and that except for stamp paper, no other document was produced before the Court as to how and from when the truck was in his possession. My attention was also drawn to some of the documents on record in the lower Court at pages 28 to 52. In view of the above, it was contended by learned Advocate for applicant that the orders of the two Courts below are required to be set aside and the truck be handed over to the applicant on supratnama till the final disposal of the criminal case.
7. Learned A.P.P. submitted before me that the prosecution had given no objection for the handing over of the vehicle to the registered owner, viz. the applicant and that the orders of the two Courts below are required to be set aside.
8. I shall, therefore, now deal with the submission made by learned Advocate for the applicant that in the circumstances, the vehicle should have been ordered to be returned to the registered owner. In Haribhau Dhondiba Chavan v. Balkrishna Bhikoba Ballal MANU/MH/0459/1987 : 1987 Mh LJ 340, the learned single Judge of this Court in paragraph 6, after referring to the Judgment of the Calcutta High Court in the case of Smt. Mahamaya Dasi v. Sanat Kumar Law MANU/WB/0102/1968, the Judgment of the Gujarat High Court in the case of Nandiram v. State of Gujarat MANU/GJ/0093/1967 : AIR 1967 Guj 80 has held that normally the registered owner is the proper person for the interim custody of the vehicle. In fact, the Allahabad High Court also in the case of Neeraj Kumar Agarwal v. State of U.P. MANU/UP/0346/1991 has also taken view that normally the vehicle should be released in favour of registered owner. In Ghafoor Bhai Nabbu Bhai Tawar v. Motiram Keshaorao Bongirwar, MANU/MH/0320/1977, it was held that the Magistrate was correct in holding that the non-applicant had superior title though the truck still continued to be in the name of applicant in the registration record. In this case, the Magistrate had come to the conclusion that the truck in question had been purchased by the respondent No. 2, but the registration had not yet been transferred in his favour. The facts of this case are more or less akin to the case under consideration. In this case, truck was registered in the name of the applicant. The case of the applicant was that he had taken loan of Rs. 10,000/- from respondent No. 2 after executing a blank form for transfer of truck in favour of respondent No. 2, but truck remained in possession of applicant. On 12-9-1976 respondent No. 1 who is son of respondent No. 2, committed theft of truck and applicant filed complaint with police and truck was seized from respondent No. 1. The stand of the respondent No. 2 was that he had purchased the truck and it was in his possession. In this case of Gafoor Bhai v. Motiram (supra) reference was made to the Judgment of the Gujarat High Court in the case of Bai Mangu v. Bai Vijli MANU/GJ/0053/1967 : AIR1967Guj81 wherein it was held that the person in whose name the vehicle stands with the registering authority is entitled to custody of it unless any other person establishes his superior title. The Division Bench of this Court in Kisan Pandurang Kagde v. Baldev Singh Gian Singh, MANU/MH/0293/1975 : 1977 Mh LJ 656 had set aside the order of the Magistrate awarding custody of the truck to the accused. In this case, the complainant/transferee had purchased the vehicle and possession of which was handed over to him. The documents on record showed that prima facie ownership of the motor vehicle and possession thereof had both passed to the complainant/transferee who alleged theft of the vehicle by the transferor. A substantial amount of the consideration had also passed and the accused had intimated to the authorities that he had sold the vehicle and had no objection to transfer of registration. Application for transfer of vehicle in the name of complainant also bore signature of accused. The facts of this case are also akin to the case under consideration.
9. Thus, though the normal rule is that the person in whose favour the vehicle is registered should be given custody of the same, but it is not an invariable rule and where someone is able to establish superior claim/title over the vehicle, the custody of the vehicle can be entrusted to him.
10. In the light of the above position, it has to be examined as to whether the order passed by the Magistrate is required to be interfered with or not. The Magistrate disbelieved the loan theory put up by the present applicant as also the theory put up by the applicant that he had signed on blank paper which was later on converted by the respondent No. 1 into sale deed. The Magistrate has given sound reasoning for disbelieving the applicant on these aspects in paragraph 5 of the impugned order. The Magistrate also noted that the applicant had executed T.C.R. Form dated 28-12-1994 which is an intimation for transfer of the ownership of motor vehicle by transferor in which the applicant had stated that he had sold the truck to the respondent No. 1 on 28-12-1994. The Magistrate also noted that Form No. 29 executed by applicant on 28-12-1994 stating that he had sold the truck on the same day to the respondent No. 1 and had also delivered possession thereof to him. The Magistrate further noticed that Form No. 30 which is report of transfer of ownership of motor vehicle, the applicant had declared that he had sold the truck to the respondent No. 1 on 28-12-1994. The Magistrate found that the signatures on all these documents and signature on Exhibit 1 of Misc. Cri. Case No. 121/95 are of one and the same person. This exercise was permissible under Section 73 of the Indian Evidence Act. I also find that the signatures on all these documents tally with the admitted signatures of the applicant on various documents which are on record at page 53 of the trial Court record and pages 1, 3, 4, 5 and 8 in File “D” of Criminal Revision No. 65/95. The Magistrate noted that the applicant did hot utter a single word in respect of these documents of transfer of ownership. Thus, on the material on record, it was duly established that the truck was sold by the applicant to respondent No. 1 as also possession of the truck was given to the respondent No. 1. The Magistrate had come to the conclusion that the applicant had executed sale receipt in favour of the non-applicant No. 1 and on that basis, the non-applicant No. 1 was entitled to possession. It may be pointed out that the change of registration under Section 31 of the Motor Vehicles Act, 1939 is not a condition precedent for transfer of ownership of the vehicle, but that section imposes a condition on both the transferor and transferee to notify transfer, but it does not invalidate transfer as such for non-compliance of that section as transfer of ownership is governed by the Sales of Goods Act and takes place from the date of sale and not from the date on which transferee’s name is recorded. The effect of Section 31 of the Motor Vehicles Act was also elaborately dealt with by the Division Bench in Kishan Pandurang Kagde v. Baldev Singh Gian Singh MANU/MH/0293/1975 : 1977 Mh LJ 656 (supra) in paragraph 8 with which I fully agree. Even though the registration continued in the name of the applicant, it is the respondent No. 1 who was rightly held to be entitled to custody and possession of the truck in question. I, therefore, do not see any infirmity whatsoever in the order of the trial Court. Accordingly, I do not find any merit in this application and the application is accordingly dismissed.