Niranjan Sahoo vs State of Orissa and Another

A.K. Parichha, J.—The Petitioner in this revision challenges the order dated 2.7.2005 passed in Criminal Trial No. 73 of 2005 by learned S.D.J.M., Athmallik rejecting the prayer of the Petitioner made u/s 457, Code of Criminal Procedure for release of a Bajaj Boxer Motorcycle bearing Registration No. OR-19-A-5187 seized in connection with the above noted criminal trial.

The relevant facts are as follows:

Opposite party No. 2 lodged an F.I.R. before the O.I.C. Athmallik Police Station alleging therein that the Petitioner was working as Project Coordinator in an N.G.O. namely, VARD and as the Director of that N.G.O., he had given the above noted motorcycle and cash of Rs. 5,000/ - to the Petitioner to look after the coordination work of the N.G.O., but the Petitioner committed criminal breach of trust and fled away with the motorcycle, cash and some documents of the N.G.O. Basing on this report Athmallik P.S. Case No. 11 of 2005 u/s 406, I.P.C. was registered. During investigation of that case the aforesaid motorcycle was seized from the possession of the Petitioner. The Petitioner then filed an application u/s 457, Code of Criminal Procedure praying for release of the seized motorcycle in his favour on the plea that he had purchased the motorcycle from opposite party No. 2 by paying Rs. 20,000/ - and being the owner in possession, he is entitled to possession of the vehicle. Opposite party No. 2 also filed a petition u/s 457, Code of Criminal Procedure claiming release of the motorcycle in his favour on the plea that he is the registered owner of the motorcycle and that the Petitioner had not purchased the motorcycle, but had entered into an agreement that an amount of Rs. 20,000/ - in the shape of monthly instalment of Rs. 1,000/ - which would be deducted from his salary and on payment of such amount he would become the owner of the motorcycle. Opposite party No. 2 alleged that without paying any such instalment the Petitioner fled away with the motorcycle, cash and documents of the N.G.O. Learned S.D.J.M., Athamallik heard both the petitions together and by the common order dated 2.7.2005 rejected the prayer of the Petitioner and allowed the prayer of opposite party No. 2 and directed release of the seized vehicle in favour of opposite party No. 2 on the later furnishing a property security of Rs. 50,000/ - along with an indemnity bond indicating that he shall keep the vehicle in running condition, shall not sell or dispose of the vehicle pending disposal of the C.T. Case and shall produce the vehicle before the I.O. and Court, as and when required for the purpose of investigation, inquiry or trial. That order is under challenge in this revision.

Mr. R.K. Nayak, learned Counsel for the Petitioner states that the Petitioner had already paid Rs. 20,000/ - to opposite party No. 2 towards the cost of the vehicle and was thus entitled to possession of the vehicle, even though the registration documents of the vehicle was still in the name of opposite party No. 2. In support of his contention, he cited the cases of Balaram Nayak v. Bijaya Kumar Nayak, (1990) 3 OCR 29; Prakash Tarachand Sakhre Vs. Ashok Pundloikrao Wajge and Another, ; Kailash Verma v. Punjab State Civil Suppliers Corporation and Anr. 2005 (1) SC 246.

Mr. A.K. Mishra, learned Standing Counsel appearing for opposite party No. 1 and Mr. G.K. Mohanty, learned Counsel appearing for opposite party No. 2 on the other hand contend that admittedly the seized motorcycle had been purchased by opposite party No. 2 by obtaining loan from ICICI Bank and the Registration documents of the vehicle even today stand in the name of opposite party No. 2 and he had given the motorcycle to the Petitioner when the Petitioner was working in the N.G.O. under him. Learned Counsels submit that the agreement dated 17.7.2004 clearly reveals that the Petitioner had not paid the required instalments and the loan amount of the Bank was still outstanding and for that reason the Petitioner was never the person entitled to possession of the vehicle. Learned Counsels support the impugned order and further contend that the present revision is not maintainable as an order rejecting prayer for release of vehicle u/s 457 of the Code of Criminal Procedure is an interlocutory order. In support of their stand, learned Standing Counsel cited the cases of Balaram Nayak v. Bijaya Kumar Nayak (supra) and Mr. Mohanty cited the cases of Chandra Sekhar Misra v. Smt. Pravat Nalini Misra and Ors. 53 (1982) C.L.T. 240; Mahavir Guru v. Himansu Guru and 2 Ors. 68 (1989) C.L.T. 213 and the case of Debendra Kumar Nayak v. Abdul Rahaman Khan and Ors. 60 (1985) C.L.T. 72.

In the case of Debendra Kumar Nayak (supra) this Court while laying down the principle relating to release of seized property u/s 457, Code of Criminal Procedure, said that once the Magistrate decides to release the property seized in connection with a criminal case, he must deliver the property to the person entitled to possession and if the person entitled to possession is not known then to keep that property in safe custody of a zimadar or pass order for disposal of the property. It was also clarified that the registered owner of the vehicle or the person from whose possession such vehicle was seized may not necessarily be person entitled to possession and the Court must satisfy itself from records and materials available that the person whom the delivery is ordered is entitled to possession. In the case of Balaram Nayak (supra) also this Court observed that simply because registration of a vehicle stands in the name of one person, it cannot be said that he is the real owner as sale of motor vehicle is not governed by ordinary law, but by a special law. So the settled principle is to release the vehicle in favour of the person entitled to possession and for deciding who is the person entitled to possession, the concerned documents as well as surrounding circumstances are to be taken into consideration.

In the present case admittedly the vehicle was purchased by opposite party No. 2 after obtaining a loan from the ICICI Bank and the said loan has not yet been repaid. It is admitted that the vehicle was given by opposite party No. 2 to the Petitioner while the Petitioner was working as the Coordinator in the N.G.O. The dispute is whether the Petitioner has already paid the price of the motorcycle and has become owner and person entitled to possession or whether he has defaulted in payment of the instalment stipulated in the agreement and opposite party No. 2 being the registered owner still continues to be person entitled to possession. Though the Petitioner claims that he has paid the consideration money and has become the owner of the motorcycle, an agreement dated 17.7.2006 is forthcoming to prima facie show that he was supposed to pay Rs. 1,000/ - from his salary every month towards the cost of the motorcycle. No such payment is also evident from the materials placed by the Petitioner. Learned Counsel for the Petitioner claims that in view of the ratio of Prakash Tarachand Sakhere (supra) even though registration of the vehicle is in favour of opposite party No. 2, yet as purchaser the Petitioner should have been accepted as person entitled to possession. In the reported case there was evidence to show that the truck was sold by the Appellant to the Respondent and the possession of the truck was also given to the Respondent. So, though the transfer of the ownership documents of the vehicle had not been registered, the Court held that the purchaser-Respondent was entitled to possession of the vehicle. The fact of that case cannot be equated with the present case as there was dispute about the sale of the vehicle to the Petitioner and payment of sale consideration amount by the Petitioner. In the case of Sri Ph. Arunachalam v. State of Orissa and Anr. (1989) 2 OCR 6 this Court took a view that in case of hire purchase agreement the financier continues to be the owner of the vehicle if the purchaser under the agreement defaults payment. Here admittedly the loan had not been repaid to the Bank either the opposite party No. 2 or by the Petitioner and there was serious dispute about the alleged sale transaction. So the learned S.D.J.M. could not have recorded a finding that the Petitioner is entitled to possession of the motorcycle.

Learned Standing Counsel has raised the question of maintainability of the revision against the order passed u/s 457, Code of Criminal Procedure on the ground that the rejection of a prayer for release of the vehicle is interlocutory order. In the case of Dhruba Singh Thakur v. Jagdish Buxi and 2 Ors. 1983 C.L.R. (Cri) 280, this Court took the view that the order granting temporary custody of seized property is not interlocutory order, as such order virtually decides the claim of the Petitioner to possess a particular property. In the case of M/s. Mukesh Oil Mills (P) Ltd. v. State of Orissa, (2005) 32 OCR 673 also this Court had the occasion of observing that refusal by a Court below to release the seized property in favour of the Petitioner cannot be said to be interlocutory order and that revision would lie from such order. Also, in the cases of Ma Thein Nu v. Ma The Hnit 21 Cr. L.J. 561 and Suraj Mohan Babu Mishra v. State of Gujarat AIR 1967 Gujarat 126 the Courts have taken a view that the High Court can in revision set aside the order passed u/s 457, Code of Criminal Procedure and direct for restoration of the property to the person entitled to. In the case of Dakhini Prasad Srivastava Vs. State of Uttar Pradesh, , it was also held that in revision, the legality of the order passed u/s 457, Code of Criminal Procedure could be gone into. The views expressed in the above noted cases appear reasonable and, therefore, I am inclined to hold that revision would be maintainable against the order passed u/s 457, Code of Criminal Procedure rejecting the prayer of the Petitioner for release of the vehicle.

In a Criminal revision it is unusual to interfere with the order of the lower Court in cases where the order of the lower Court is passed upon cogent reason. Even though the revisional Court might take a different view then also the order of the lower Court is not to be usually interfered with when substantial justice has been done by the order of the lower Court. The simple principle, thus, is that the revisional jurisdiction is quite restricted and no scope is left for interference with the order unless there is miscarriage of justice or any illegality or impropriety in the order or the order is without jurisdiction. In the present case the learned S.D.J.M., Athmalik has analyzed the evidence and circumstances on record and has recorded his finding that the opposite party No. 2 is the person entitled to possession of the vehicle. The approach does not appear to be perverse, illegal or without jurisdiction. Therefore, the impugned order does not call for any interference.

The revision is accordingly found to be without any merit and is dismissed.