Ayuob Khan vs Mushtaq Ahmad Dar

Bansi Lal Bhat, J.—Petitioner has invoked the jurisdiction of this Court in terms of the provisions of Section 561-A of Code of Criminal

Procedure, (for brevity 'Cr.P.C.') for quashing the order dated 21.10.2013 passed by the learned Judicial Magistrate, Pulwama, on the application

of Respondent-Mushtaq Ahmad Dar for release of seized tipper bearing registration No. JK13-5511, on the ground that the impugned order has

been passed without application of mind ignoring the fact that the petitioner was the registered owner of the seized vehicle entitled to its custody

pending inquiry into the allegations in the complaint. It appears that the petitioner approached the court below with a complaint alleging therein that

he had purchased the tipper bearing registration No. JK13-5511, in the year 2001, after obtaining the loan from the Bank and engaged the

respondent as driver for plying the tipper and submitting its accounts every week to the petitioner. But the respondent had, after adhering to the

terms of his engagement for sometime, allegedly committed misappropriation in respect of the vehicle and the income derived from the vehicle. It

appears that the learned Judicial Magistrate, after taking cognizance of the offence under sections 406, 420 of RPC deemed it appropriate to get

the complaint investigated in order to ascertain truth or falsehood of allegations leveled therein. The learned Magistrate, accordingly, postponed the

issue of process against the respondent and directed the SHO, Police Station, Awantipora, to investigate into the allegations in the complaint. The

investigation was directed by invoking the provisions embodied in section 202 Cr.P.C. Pending inquiry into the complaint, the vehicle in question

came to be seized during the course of investigation. Both the parties approached the learned Judicial Magistrate with the applications seeking

release of the seized vehicle. On consideration of the rival claims of the parties, the learned Magistrate passed the order which is impugned herein.

What emerges is that before the learned Magistrate the claim of the petitioner was that he was the registered owner of the seized tipper and that

he had not sold the vehicle to the respondent. He claimed that since the vehicle was financed by the Bank and he was under obligation to liquidate

the loan amount, continued detention of vehicle was depriving him of its income inflicting heavy losses upon him.

Per contra, the respondent staked his claim to the custody of seized vehicle on the ground that he had purchased the vehicle from father in law

of the petitioner namely Haji Bashir Ahmad on 11.07.2011, against the consideration amount of Rs. 15.60 lacs; that there was an outstanding

liability of financer Bank to the tune of Rs. 8.30 lacs in the name of the petitioner and the respondent had agreed to liquidate the outstanding

liability. The respondent claimed that he had deposited the cash component of sale consideration to the tune of Rs. 7,10,215/- through cheques in

the Cooperative Bank, Branch Litter, which had issued cheques in the name of the Jammu & Kashmir Bank, Branch Awantipora, for collection in

the account of said Haji Bashir Ahmad. Respondent also claimed that he had deposited the various installments of loan amount towards the Bank

and thus he was the bona fide purchaser of the tipper entitled to its custody.

I have heard learned counsel for the parties and considered the matter besides perused the record of the court below.

It is well settled that inherent jurisdiction vested in this Court u/s 561-A of Cr.P.C. is not curtailed by the provision contained in Section 435(3)

Cr.P.C. However, exercise of such powers rests upon the peculiar features of the case and the nature of order assailed in the proceedings. That

being the position of law, in cases pending consideration at the pre-charge inquiry or trial, the criminal Court can invoke the provision u/s 516-A of

Cr.P.C. to deal with the interim custody of the property seized pending such inquiry or trial. The considerations that weigh with the criminal court at

that stage are that the Court has not to decide the question of title or ownership of rival claimants to the seized property. The question of

possession of property at the time of its seizure has to be gone into and decided before passing an order for the interim custody of the seized

property. Even in the case of property governed by sale of Goods Act like a Motor Vehicle, the Court cannot go into the question of title. The

Court has to decide as to who is, prima facie, entitled to possession of the seized vehicle. As a matter of general rule, the seized property has to be

returned to the person who was holding its custody at the time of its seizure unless it is shown that he had obtained possession thereof unlawfully or

illegally. u/s 110 of Evidence Act any person found in possession of some property is presumed to be its owner unless it is shown that he has

obtained such property unlawfully or by adopting illegal means. Thus, a person would be entitled to interim custody of a vehicle recovered from his

possession at the time of its seizure unless he is alleged to have committed an offence in respect thereof to render his possession unlawful at the

relevant time. Interim custody of vehicle cannot be given to a person accused of having committed theft of such vehicle and his failure to produce

proof of being a transferee from the registered owner. However, the principle that the registered owner is entitled to interim custody of the seized

vehicle is not a principle of universal application. There may be cases where the registered owner may have sold the vehicle to another person

without effecting transfer of registration of vehicles under the Motor Vehicles Act. In such cases, the Court cannot allow the vehicle to be delivered

to interim custody of the 'dishonest vendor' and it would be appropriate to deliver the seized vehicle to interim custody of the purchaser in such

cases. Merely because registration has not been transferred in the name of purchaser would not render the transaction of sale of vehicle bad. I am

fortified in this view by a judgment of this Court delivered in Shanti Devi v. State of J&K and others reported in 1986 KLJ 579 : JKJ Soft

JKJ/10705.

Adverting to the facts of the case at hand, it is seen that the learned Magistrate, while appreciating the rival contentions noticed that the seized

vehicle was registered in the name of the petitioner and the same was under hypothecation to the Jammu & Kashmir Bank, Branch Awantipora,

which had financed the vehicle. The case of the respondent before the learned Magistrate was that he had purchased the vehicle from the father in

law of the petitioner namely Haji Bashir Ahmad. Despite noticing that the petitioner was the registered owner of the vehicle in question, the learned

Magistrate, relied upon the version of respondent without any material to support his version. It sounds strange that the learned Magistrate

attached credit to the plea of respondent that Haji Bashir Ahmad was actual owner of the vehicle. Admittedly, there was no transaction of sale of

vehicle in favour of Haji Bashir Ahmad from its registered owner-petitioner. In absence of any material like a transaction of sale, an agreement to

sell or any other mode of transfer of title of vehicle from the petitioner to Haji Bashir Ahmad in accordance with the provisions of sale of Goods

Act, it was not open to the learned Magistrate to attach any weight to the claim of respondent who appears to have projected his case on the basis

of some Bank receipts in regard to payment of bank installments. It was also not permissible for the learned Magistrate to infer transfer of title of

the vehicle in favour of respondent merely because the petitioner had failed to demonstrate that he had been liquidating the bank installments after

the seizure of the vehicle. It is queer that the learned Magistrate has tried to appreciate the case put forth by the respondent in regard to transfer of

title which fell outside his domain. The question of title being anterior to the limited scope of inquiry postulated u/s 516-A Cr.P.C. and it not being

the respondent's case that he was a transferee of the seized vehicle from its registered owner, the impugned order regarding interim custody of the

seized tipper in favour of respondent cannot be supported. Legal infirmity is writ large on the face of impugned order. The learned Magistrate has

exceeded his jurisdiction and the impugned order has occasioned a failure of justice warranting invoking of inherent powers of this Court.

Viewed thus, the impugned order dated 21.10.2013 formulated by the learned Magistrate cannot be sustained and the same deserves to be

quashed.

This petition is, accordingly, allowed and the impugned order dated 21.10.2013 is quashed. As a corollary, the seized vehicle is directed to be

delivered to the interim custody of the petitioner being the registered owner subject to filing of an undertaking to the satisfaction of the learned

Judicial Magistrate, Pulwama, that he shall not sell, dispose of, mortgage/hypothecate the vehicle in question or create any encumbrance on the

vehicle, and will maintain the accounts of the income derived from the operation of the vehicle and submit the same to the Court of learned

Magistrate, Pulwama, on monthly basis till the passing of the order in regard to disposal of the property after conclusion of inquiry or trial, as the

case may be. He shall also undertake to abide by such order in regard to disposal of the property as may be passed upon conclusion of the inquiry

or trial.

Registry is directed to remit the record forthwith alongwith a copy of this order to the Court below. Disposed of alongwith Cr.M.P.