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Judgment
N. Arumugham, J.—This revision is directed against the order passed by the learned Judicial Magistrate, Gingee, in Crl.M.P. No. 2358 of
1993, dated 2.7.1993, which was filed u/s 451 of the Code of Criminal Procedure by the first Respondent herein, praying for the interim custody
of the Bus bearing Registration Mark TDJ 4235.
The brief facts, which led to this revision, as culled out from the impugned order and the Court records, are stated as follows:
The Petitioners are the mother and son having the Registration certificate, insurance and the route permit in the name of the first Petitioner for the
Transport Bus bearing Registration Mark TDJ 4235 and accordingly both the Petitioners having residing at Madras, running the said bus from
Panruti to Melmalayanoor and collecting the fares in accordance with the relevant provisions of the Motor Vehicles Act and the permit issued by
the Authorities concerned. The said bus was said to have been subjected to a hire purchase agreement for the monetary loan advanced to the
Petitioners by the father of the first Respondent herein and that the said hire purchase was duly entered in the R.C. book. But, however the said
document were found available with the Petitioners herein and accordingly they have been complying with the conditions of the hire purchase
agreement and that during the said process it is stated that there was certain irregular default due to which some amount became payable to the
father of the first Respondent. The first Respondent herein is the son of the said hire purchase owner. In this background, upon a complaint given
by the first Respondent herein, registered by the Sub Inspector of Police, Valathy Police Station (2nd Respondent herein) in Crime No. 164 of
1993 for the offence u/s 379, I.P.C., against the Petitioners for having allegedly committed the offence of theft by taking the bus from the custody
of the first Respondent herein, and during the course of investigation, the Sub Inspector of Police, seized the said bus from the custody of the
Petitioners herein and handed over to the Court, and the Court in turn by passing the impugned order in Crl.M.P. No. 2358 of 1993, dated
2.7.1993, directed that the interim custody of the said bus was to be handed over to the first Respondent herein and not the Petitioners. Aggrieved
at this, the present revision has been directed by the Petitioners by invoking Section 482, Cr.P.C., as well as S. 401, Cr.P.C.
Mr. Y.K. Rajagopal, the learned Counsel appearing for the Petitioners, while canvassing the present revision, would contend that the Petitioners
are since the owners of the said transport bus in question in the context that the registration certificate, insurance and the route permit and all other
necessary documents provided under the relevant law stand in the name of the first Petitioner, she is deemed to be the owner and that as such the
question of committing the offence of theft of the said bus does not at all arise and that the Court below ought to have seen that with a view to have
an eye upon the bus, taking advantage of some default in the payment of the due on the hire purchase agreement with the father of the first
Respondent, the first Respondent has lodged a frivolous complaint to the Police and accordingly the Police obliged him arbitrarily and by adopting
a partisan attitude and that is why the reason the learned trial Magistrate without ordering notice to the Petitioners herein, but, however hearing the
Police alone, directed the handing over or the interim custody of the bus to the first Respondent, which clearly causes a great prejudice and serious
legal infirmity and that therefore the said impugned order is liable to be interfered with.
Mr. J.I. Raikumar Roberts, the learned Counsel appearing for the first Respondent, would contend inter alia that pursuant to the default of
payment of the hire purchase due, the Petitioners being the owners, handed over the bus in question to the first Respondent and agreed to transfer
the route permit, R.C., and other necessary documents in his favour and that in pursuance thereof, the first Respondent took the custody of the bus
in question and also applied for the transfer of the route permit in his name to the Authorities concerned and that during the said process was
pending, an objection was filed to the Regional Transport. Authority not to effect the transfer by the Petitioners herein, followed by the refusal of
the same and filing an appeal before the State Transport Appellate Tribunal, Madras, which passed an interim order in I.A. No. 79 of 1993 in
Appeal No. 145/93/A4, dated 3.6.1993. Then subsequently the Transport Appellate Authority suspended the operation of the order passed by
the Regional Transport Authority till 8.7.1993, however, it is being extended then and there and thus accordingly the appeal is pending disposal
now. Therefore, the learned Counsel would contend that though the R.C., book still stands in the name of the first Petitioner, the first Respondent
was able to get the transfer of his name in the insurance due to the said bus in question. The said circumstances and facts dearly disclose that the
first Respondent is deemed to be the owner of the said bus and taking of the same by the Petitioners without the knowledge of the first
Respondent, clearly amounts to an offence, of theft, and that therefore the first Respondent was constrained to lodge a complaint to the Velathy
Police Station and it was seized from the custody of the Petitioners rightly and the temporary custody was also handed over by the Court by
following the legal norm in built in Section 451, Code of Criminal Procedure Thus, the learned Counsel for the first Respondent would perfectly
justify the impugned order passed by the learned Magistrate.
In the light of the above rival contentions, the only point which arises for consideration is that whether the impugned order passed by the learned
Magistrate is vitiated by illegality or impropriety, and if so, liable to be interfered with?
It is seen from the arguments advanced on behalf of the respective parties that the fact that the registration certificate, route permit and other
documents as contemplated by the Motor Vehicles Act, in respect of the bus in question, stand in the name of the first Petitioner, who is the
mother of the second Petitioner, and both are living in Madras. The first Respondent is admittedly living in Gingee near the place within the
jurisdiction of Valathy Police Station. It is worth-while to note at this juncture the transport bus in question is being operated between
Melmalayanoor and Panruti in accordance with the permit granted by the Transport Authorities. It is the common case that previously the first
Petitioner was the owner of the bus and as such every document of title stands in her name only. But due to the default of certain dues under the
hire purchase agreement, the claim of the first Respondent is that the bus in question has been handed over to him, and consequently the Petitioners
agreed to transfer the R.C., as well as the insurance and other route permit and so on. But, however, it is seen that with regard to the transfer of
the name regarding the route permit, a dispute is still pending adjudication before the State Transport Appellate Authority and the operative portion
of the order of Regional Transport Authority directing the transfer of the first Petitioner''s name is being stayed and is till in force. If that being the
case, then I find no difficulty at all in holding that the first Petitioner is the owner of the bus in question and the route permit granted to the said bus
in question is yet to be transferred. In this context the very contention that the insurance for the said bus in question has been changed in the name
of the first Respondent, as contended by the learned Counsel, is of no consequence.
Coming to the factual aspects of the case, it is worth-while to note the very contents made in the written complaint lodged by the first
Respondent in this case, wherein it is alleged at the midnight of 9.6.1993 the bus being plied between Panruti and Melmalayanoor, TDJ 4235 was
taken by some unidentifiable persons along with the first Petitioner and the driver and the conductor of the said bus were being chased to a
considerable distance and ultimately forced to get down and this fact was intimated by his Manager one Basha Reddiar on 10.6.1993 itself. Thus,
from the very contents above referred it is seen that while the bus running in the route, it is alleged that the first Petitioner along with some
unidentifiable persons, took the same by force, which was on the night of 9.6.1993, but however the said fact was reported to the first Respondent
on 10.6.1993. But it is significant to note the written complaint with regard to the abovesaid effect was given only on 17.6.1993 at about 9 a.m., in
Valathy Police Station, which has been registered as Crime No. 164 of 1993 for the offence under S. 379, IPC. Thus, it is very clear after a week
almost from the alleged occurrence a complaint was thought of to be given before the Law and Order Enforcing Authority and consequently the
case was registered and that during the said sojourn this bus in question was recovered from the custody of the Petitioners. At this stage, I would
make myself clear that I do not want to express any of my opinion with regard to the merits of the case, which would in my view, affect the trial in
either way.
But for the limited purpose of deciding this case I have to peruse the impugned order passed by the learned Magistrate. A plain reading of the
impugned order passed by the learned Magistrate itself manifestly makes it clear that the said order cannot be sustained in law, for the simple
reason the owner, viz., the first Petitioner nor her son were not heard before the impugned order was passed u/s 451 Code of Criminal Procedure
What the learned Magistrate did was he has served the notice only upon the S.I., of Police concerned, and after having perused his consent, he has
passed the order so vaguely by referring that the receipts for the purchase of the bus in question and the transfer of the R.C., were perused. But,
however, the learned Magistrate has not even referred to what are the documents and its relative date and other particulars and so on. In the light
of the above rival contentions when a dispute is pending before the Tribunal with regard to the transfer of the route permit and other title
documents of the bus in the context of the R.C. book stands in the name of the first Petitioner, the judicial pronouncement made in this regard is
that those who got the R.C., book in his name for the vehicle is deemed to be the owner, has not been considered at all and in this regard the first
Petitioner ought to have been served with the notice before passing the order and after hearing their objections only the learned Magistrate ought to
have passed the impugned order. But he did not do so. The further fact that after a lapse of one week a complaint was given to the Police and
consequently the bus was seized and handed over to the first Respondent by the Court of law without adopting the legal mandate clearly
demonstrates the fact that the impugned order is vitiated with every illegality and impropriety.
In this regard, it has become necessary to advert to S. 451 of the Code of Criminal Procedure, which runs as follows:
Order for custody and disposal of property pending trial in certain cases: When any property is produced before any Criminal Court during any
inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial,
and if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as
it thinks necessary, order it to be sold or otherwise disposed of.
Explanation: For the purposes of this section,
property"" included -
(a) property of any kind or document which is produced before the Court or which is in its custody.
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any
offence.
Thus, if the impugned order is perused, the learned Magistrate while passing the same has not given its reasoning for handing over the said bus
to the first Respondent herein by referring to particular documents and its contents thereof and so on, and further in the context of the said rival
claims over the said bus, the proper person to be heard is not only the S.I., of Police, but also the first Petitioner herein and that without being
heard, adopted the said procedure and thus the passing of the impugned order is highly illegal and clearly violates the legal mandate provided in the
above section of law.
In P. Sekar v. State by Inspector of Police, Kovilpatti East Police Station and Ors. (1992 L.W. (Crl.) 47) while dealing with the scope of
Section 451 Cr.P.C., with regard to the interim custody of a lorry under a hire purchase agreement, a learned single judge of this Court has
observed as follows:
Interim custody of lorry under a hire purchase agreement, Petition for - Considerations before Magistrate - Duty to consider only the relative
claims of applicants vis-a-vis the facts of the criminal case before the Magistrate.
Rights of persons not connected with criminal case ought not to be considered. Such rights to be worked out only through other forums intended
for that.
Complaint u/s 406 I.P.C., against the driver of a lorry and another person regarding goods entrusted for breach of trust, because of failure to
deliver - seizure of lorry in the course of investigation and charge sheet laid by the police against the owner of the lorry and others - Application for
interim custody by financier on hire purchase filed before the Magistrate and ordered by him without notice to owner of lorry - Order set aside as
illegal. In matters relating to motor vehicles, interim custody generally has to be ordered to one in whose name the R.C., stands and who can put
the vehicle to the best use.
In State Bank of India Vs. Rajendra Kumar Singh and Others, , the Supreme Court has held the view as follows:
It is true that the statute does not expressly require a notice to be issued or a hearing to be given to the parties adversely affected. But though the
statute is silent and does not expressly require issue of any notice, there is in the eye of law a necessary implication that the parties adversely
affected should be heard before the Court makes an order of return of the seized property. Thus an order of the High Court reversing the order of
the Sessions Court directing disposal of property u/s 517, without giving notice to the person to whom the property is directed to be delivered by
the Sessions Court, is vitiated by law.
In B. Lalithchand Nadar v. State and another (1990 (2) MWN (Crl.) 23) a single judge of this Court has observed as follows:
Order u/s 451, Cr.P.C., is only for a temporary arrangement to provide custody with a proper person as the Court think fit; even if such person is
the owner of the property, his possession or custody is only as representative of the Court and not in his independent right.
After having followed the views held by the Kerala High Court in V. Prakasham v. K.P. Pankojakshan (1985 Cri.LJ. 951 Ker) as well as C.
Gopalasamy v. Magarajan and 2 others (1987 LW (Crl.) 481), the learned judge of this Court in the above referred citation, held the view that the
order passed u/s 451. Cr.P.C., is only temporary in nature and would subsist only till the disposal of the main case itself.
If the ratio enunciated in the above case laws are employed to the facts of the instant case, it is made clear that in the light of the pendency of a
case before the Transport Appellate Authority regarding the transfer of route permit to the bus in question between the respective parties herein, in
the context of the R.C., book and other documents still stand in the name of the first Petitioner, then the learned Magistrate ought not to have
handed over the custody of the bus in question to the first Respondent, but to the Petitioners alone, which is only temporary in nature, till the
disposal of the case on merits. Further the owner, the first Petitioner of the bus has not been served with the petition filed upon which the impugned
order was passed. This shows the collusiveness of the concerned police with the first Respondent. For all the reasons aforesaid and having
considered the entire gamut of the situation, I am of every considered view that the impugned order passed by the learned Magistrate is vitiated
with every illegality and impropriety and that as such it is liable to be set aside. While setting aside the same, I hereby direct the learned Magistrate
to cancel the security or the bond executed, if any, by the first Respondent and get the custody of the bus in question from the first Respondent and
hand it over the same to the first Petitioner, on getting proper security and undertaking in this regard to be produced whenever it is required to do
so, without any alteration or hypothecation further or disposal of it and deal with in any other manner, during the pendency of the trial, on the
approach of the first Petitioner herein once again.
In the result, the Petitioners in this revision succeed and accordingly the order passed by the learned Magistrate in Crl.MP. No. 2358 of 1993,
dated 2.7.1993 is hereby set aside and the directions given above are to be complied with by the learned Magistrate.