Kulwant Singh vs State of Punjab

R.L. Anand, J.

Present is a revision which has been directed against the order dated 3rd March, 1997 passed by the Chief Judicial Magistrate, Patiala, who released Bus No. PAB8681 on superdari to Harnek Singh subject to the furnishing of superdari bond in the sum of Rs. 11 lacs with one surety in the like amount. Aggrieved by the said order, Kulwant Singh has filed the present revision.

The aforesaid bus became the subject matter of FIR No. 27 dated 21.2.1997 registered under Sections 279/337/427/403A, Indian Penal Code, against one Kirpal Singh, who, admittedly, is the driver of Harnek Singh. The order of the learned Chief Judicial Magistrate is sought to be set aside by the learned counsel for the petitioner on the ground that as per the registration certificate, his client Shri Kulwant Singh is the owner and in these circumstances the Chief Judicial Magistrate was duty bound to hand over the vehicle to the petitioner and not to the respondent.

Before I comment upon the merits of the submissions made by Shri P.K. Jain, learned counsel for the petitioner, I may state that revision against the order is not legally maintainable in view of the case law relied upon by the learned counsel for the respondent reported as Smt. Anisa Begum v. Masoom Ali and another, 1986 Crl. L.J. 503, wherein it has been held as under :

"An order under Section 451, IPC, does not decide anything finally. It is made during the progress of the inquiry or trial for a specific purpose, i.e., interim custody of the property produced before the court. It is a different thing that while passing it the court may, inter alia, take into consideration as to who is the person prima facie entitled to its possession but that would not mean that any party is entitled to interim custody of the property as of right. If the court does so it is only to facilitate proper exercise of judicial discretion and nothing more. The Sessions Judge or the High Court does not have jurisdiction to revise such an order of the Magistrate in view of the specific bar contained in Section 397(2) of the Criminal Procedure Code.

The exercise of inherent power under Section 482, Cr.P.C., should not be resorted to if there is specific provision in the Code for the redress of the grievance of the aggrieved party and it should not be exercised as against the express bar of law engrafted in any other provision of the Code. Further, power under Section 482 being extraordinary in its very nature, it has to be exercised sparingly ex debito justitiae to prevent the abuse of process of any court or otherwise to secure the ends of justice. The order of the Magistrate in the instant case, directing entrustment of the custody of the property in question cannot be said to suffer from any legal infirmity or impropriety which would warrant invocation of inherent power by the Court."

Learned counsel for the respondent has also relied upon a judgment of this Court reported as Bahadur Singh v. The State of Punjab and Lakhwinder Singh, 1984(1) Recent Criminal Reports 425, and has relied upon the observations as contained in para No. 4 of the judgment, which is again reproduced as follows :

"4. There is one more circumstance which militates against the petitioner. The impugned order, as the facts of the case reveal, cannot be said to be one passed under Section 452 of the Code. It is covered by Section 451 of the Code under which the Court, in case it is unable to find as to who is the person entitled to its possession, may merely hand over the custody of the property to a person subject to the condition that he would produce the same in Court as and when required. This type of order cannot be said to be different in nature from the one passed under Section 451 of the Code. Viewed thus, the impugned order not having brought the main controversy of the theft of the vehicle to an end, is interlocutory in character against which revision under Section 401 of the Code is clearly barred."

Learned counsel for the petitioner has tried to distinguish both the case law by urging at the Bar that in the present case the bus in question was not the case property.

I am not in a position to agree with the submissions raised by Shri P.K. Jain, learned counsel for the petitioner, because in my opinion the bus in question is an integral part of the case itself. As per allegations of the FIR, the driver caused the accident and at the time of the alleged accident, he was driving the bus in question. This bus was taken into possession from the custody of the respondent. In these circumstances, it was fair and proper on the part of the Court to restore the custody of the property to the person from whom the possession was taken. If the petitioner has any better title against the respondent over the bus, he can independently establish in a Civil Court and can obtain the necessary orders in this regard.

Faced with this difficulty, learned counsel for the petitioner then submitted that this Court has ample powers to treat this revision as a Criminal Misc. and necessary directions can be given for the restoration of the bus in question to the petitioner by invoking the provisions of Section 482, Cr.P.C.

There is no dispute with the proposition of law as propounded by the learned counsel for the petitioner, but the point for determination is whether the powers under Section 482, Cr.P.C., which are supposed to be used sparingly and in exceptional circumstances should be used in favour of the petitioner, who has only a fair document of title in his possession, but it has not been established so far that he has the exclusive right of possession over the bus in question, in view of the disputed stand taken up by the respondent. According to the respondent, under an agreement the money had already been parted (paid ?) to the petitioner and in consideration thereof the possession of the bus has gone to him. When there is a disputed question of title, which is supposed to be adjudicated by the Civil Court, in the view of this Court, the provisions of Section 482, Cr.P.C., may not be and should not be invoked.

Resultantly, by holding at the first instance that the present revision is not maintainable, and secondly that it is not a case where the provisions of Section 482, Cr.P.C. should be invoked, the petition is hereby dismissed with the observation that the petitioner may approach the Civil Court for the adjudication of his rights.

Nothing stated above shall amount to an expression of my opinion on the merits of the case. My observations made above shall only be limited for the purpose of present revision petition.