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Judgment
Padmini Jesudurai, J.—The first accused in C.C.No.777/89 pending before the Judicial Magistrate No. I Kovilpatti against whom and two others, on a charge sheet filed by the first respondent herein for offences under Ss.406 and 420, I.P.C. and S.3, 7, 42(i) read with S.1, 23, and 112 of the Motor Vehicles Act, 1939, invokes the inherent powers of this court under S.482, Cr.P.C. for a direction to the second respondent to produce the lorry seized in the case whose interim custody had been ordered to the second respondent by the learned Magistrate and to return the same to him.
Circumstances relating to the present application are briefly as follows:- On 13-2-1989 one Paramasivam gave a complaint before the first respondent that one Selvam and Raja appeared before him on 8-2-1989 in the lorry bearing registration No. TDS 6895 at Kovilpatti and eave out their names as stated above and agreed to transport his 96 bags of black-gram worth Rs. 55, 15920 and hand over the same to Jeyam Corporation, Madurai for a fare of Rs. 550/- that he entrusted the above blackgram load to the above two persons but he learned from Jeyam Corporation that the load had not been delivered to them and that the two persons had committed criminal breach of trust in respect of the black-gram entrusted to them. The first respondent registered it as Cr. No. 108/89 of his station for an offence under S.406 I.P.C. against the lorry Driver Selvam and the Cleaner Raja. During investigation the lorry bearing registration No. TDS 6895 and other articles had been seized. The lorry had been remanded to judicial custody. During investigation, it transpired that the petitioner was the owner of lorry bearing registration No. TDQ 6541 Renukadevi that the petitioner and the co-accused altered the number plate of the lorry from TDQ 6541 Renukadevi to TDS 6895 Murugan Thunai, that they also described themselves by false name and obtained delivery of 96 bags of blackgram from the complainant for delivering it to Jeyam Corporation, Madurai that they took the black-gram in the vehicle to Srivilliputhur, unloaded it in the house of their relative Krishnaswami Naicker, representing to him that the black gram belonged to them and requesting him to sell the same, that they would return in a week to collect the sale proceeds. At this stage, the case was reported and the vehicle and the blakgram were seized. The first respondent has now filed charge sheet against the petitioner and two others for the offences mentioned above, alleging that the lorry bearing registration No. TDQ 6541 Renukadevi belongs to the petitioner herein, that tax had not been paid and the permit for the vehicle not renewed after 31-12-1988, that the petitioner has no driving licence and the petitioner and the co-accused had altered the number plate and the name of the Vehicle, making the complainant believe that the vehicle had the altered number and the altered name, gave their names also and committed misappropriation of the blackgram entrusted to them by the complainant for delivery to Jeyam Corporation, Madurai.
The second respondent who has entered into a hire purchase agreement with the petitioner in respect of the lorry bearing registration No. TDQ 6541 filed Crl.M.P. 1813/89 for interim custody of the vehicle and the learned Magistrate, without even notice to the petitioner had ordered interim custody to the second respondent. On coming to know about the proceedings, the petitioner had filed Crl.M.P. No. 2826/89 before the learned Magistrate for return of the vehicle to him and on the learned Magistrate dismissing the same, the present petition has been filed impleading the second respondent as well.
Thiru K. Jaganathan, learned counsel for the petitioner would urge that the second respondent is a third party to the criminal proceedings, his claim could be enforced only in a civil forum, the petitioner has paid dues to the second respondent till the date or the seizure of the vehicle by the police and the criminal Court could not be called upon to invoke S.451 Cr.P.C. to enforce contractual obligations, which are in no way connected with the crime or the circumstances under which the property had come to judicial custody and as such, the order passed by the learned Magistrate granting interim custody of the vehicle to the second respondent, even without making the petitioner a party and bearing him ought to be set aside and the interim custody of the vehicle should be handed over to the petitioner.
The learned Public Prosecutor adverted to the facts of the criminal case as summarised above and left the matter at that.
Thiru P. Sukumar, learned counsel for the second respondent would however urge that under the hire purchase agreement, it is the second respondent who is the owner of the vehicle so long as the agreement is in force, that the petitioner had committed default in the payment of the instalments and had committed breach of the hire purchase agreement, which gave a right to the second respondent to seize the vehicle even without notice to the petitioner. According to the learned counsel, the hire purchase agreement which had been violated, gave the second respondent the right to be in possession of the vehicle and as such the order of the learned Magistrate could not be legally assailed.
The short question that arises for consideration is whether interim custody of a property seized in a criminal case could be ordered to one who is a third party to the criminal proceedings and who claims rights under an independent contract, which the criminal court could take cognizance of and enforce.
The impugned order being one under S.451 Cr.P.C, it is appropriate to extract the legal provision.
451 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 purpose of this Section, property includes-
(a) property of any kind or document which is produced before the Court or which is in its custody,
(b) and property regarding which an offence appears to have been committed or which is in its custody,
(c) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.
Pending trial, the criminal court has to pass appropriate orders for proper custody of the property produced before it, so that the same may be available at the conclusion of the trial for final orders to be passed under S.452, Cr.P.C. The term property is an inclusive definition and is very wide. Equally wide is the nature of the order that the criminal court could pass under S.451 as is seen from the words "may make such order as it thinks fit". Though the discretion is wide, it is curtailed by well recognised judicial considerations. In matters relating to motor vehicles, it has been held that interim custody should generally be ordered to one in whose name the registration certificate stands and who can put the vehicle to the best use. These principles have been elaborated by this Court in G. Gopalaswami v. Nagarajan and two others 1987 I.W. Cri. 487. According to the records of investigation and the charge sheet, the petitioner is the owner of the vehicle, though under the hire purchase agreement, if it is still in force, the financier is deemed to be the owner. The registration certificate stands in the name of the petitioner. The allegation is that, the petitioner has not paid the tax for the vehicle and has not renewed the permit subsequent to the period 31-12-1988. These by themselves would not make the possession of the vehicle by the petitioner unlawful. The trial is for the petitioner driving the vehicle without a driving licence and plying the vehicle without the necessary permit and also for cheating the informant Paramasivan by making false representation regarding their names, registration number of the vehicle and the name of the vehicle. The charge is also for misappropriation of the 96 bags of the black gram entrusted by the informant to the petitioner and the co-accused for delivery to Jeyam Corporation, Madurai. It is the commission of these offences that had lead to the seizure of the vehicle. The first respondent could seize the vehicle only if an offence had been committed in respect of the properties seized or if the same had been used for the commission of the crime. Neither the second respondent nor his hire purchase agreement come anywhere in the picture, so far as the offences for which the vehicle had been seized. The second respondent is a third party to the criminal proceedings. The powers of the police to seize the property could only be gathered from the provisions of the Criminal Procedure Code. In the instant case, the police had not seized the vehicle, in enforcement of a hire purchase agreement, even if there has been a breach of contract and the financier had a right to seize the vehicle without notice to the hirer. These rights flowing from the contract between the financier and the hirer have to be worked out only in forums meant for it, namely, the civil court. The Civil Procedure Code, enables the plaintiffs/Financier to seize the vehicle in enforcement of a hire purchase agreement. But such rights cannot be enforced through a criminal court. The liability and the extent of the liability of the hirer to the financier could be disputed. A Criminal Court cannot adjudicate upon these disputes. In the instant case, the petitioner''s case is that, on the date of seizure of the vehicle by the police, there were no dues and default in the instalments, while the second respondent Financiers has a different version. Neither S.451 Cr.P.C. nor S.452 nor S.457 can be used by a party to a civil contract, to short-circuit civil remedies, foreclose adjudication on the alleged violation of contract and get possession of the vehicle through a criminal court.
It is unfortunate that the learned Magistrate, without considering all this, has passed the order in a casual way granting interim custody of the vehicle to the second respondent who is a stranger to the criminal proceedings and whose claims the learned Magistrate was not competant to determine. The Public Prosecutor saying he had no objection to interim custody being ordered to the second respondent cannot be a ground for passing a wrong order. The petitioner, according to the investigation records is the owner of the vehicle. Yet, the petitioner has not even been made a party in the second respondent''s petition. Nor was the petitioner heard, before the learned Magistrate passed the order. The vehicle belonged to the petitioner and had been seized from the petitioner. Even without the tax being paid and the permit being renewed, the possession of the vehicle by the petitioner was still a lawful possession. The criminal court was not concerned with any hire purchase agreement, which had no bearing on the facts of the criminal case in which the vehicle had been seized and remanded to judicial custody. Because the vehicle had been used to commit the offences under S.406 and 420 I.P.C. the police acquired the power to seize the vehicle and the learned Magistrate, remand it to his judicial custody. When orders for custody are to be passed, the learned Magistrate has only to consider the relative claims of applicants vis-a-vis the facts of the criminal case before him. He is not concerned with the rights that anyone, not connected with the criminal case, may have over the vehicle. Such rights have to be worked out through other forums, intended for that.
The Supreme Court in Trilok Singh v. Saya Deo Tripathi AIR 1979 S.C. 859 quashed a private complaint for an offence of decoity, made when the financier enforcing the hire-purchase agreement as well as the vehicle. The execution of the agreement, as well as the liability were all disputed and the Supreme Court observed that the dispute was purely of a civil nature and the disputed questions could be properly and adequately decided only in a civil court.
The order passed by the learned Magistrate granting interim custody of the vehicle to the second respondent cannot be legally sustained. The second respondent has to approach the civil court, establish breach of hire purchase agreement and his right to seize the vehicle and work out his remedies as per the terms of the agreement, only in the civil forum. These are considerations which are totally extraneous to the criminal court, while ordering interim custody under S.451, Cr.P.C.
Though there is no specific prayer as such for setting aside the order passed by the learned Magistrate in Crl.M.P.No.1813/89, that being a mere technicality and since the second respondent also is a party in this petition, consequential orders are passed setting aside the order passed by the learned Magistrate in Crl.M.P.No.1813/89 and directing the second respondent to produce the vehicle before the learned Magistrate on or before 28-11-1991, for being handed over to the petitioner herein, on the petitioner executing a bond for Rs. 50,000/- with two sureties for a like sum and undertaking to produce the vehicle in the same condition, as and when required by any court of law.
This petition is ordered accordingly.