Sardara Singh and Another vs Nur Ahmed

V.K. Mehrotra, J.—This petition u/s 401 read with Section 482 Code of Criminal Procedure arises out of proceedings u/s 457, Code of Criminal Procedure. The trial Magistrate passed an order on December 19, 1990 in favour of the two applicants. That order was reversed by the learned Addl. Sessions Judge, Mandi, on January 8, 1991.

One Mohammad Amin is the registered owner of a motor vehicle (truck No. HID 4966). Under a hire purchase agreement, the truck was purchased by obtaining loan from the Canera Bank, Mandi.

On February 12, 1990 an agreement for the sale of the vehicle aforesaid was entered into between Mohammad Amin through his special power of attorney holder Nur Ahmed and Sardara Singh and Prem Lal Kapoor, the two applicants in the present petition. Under that agreement the vehicle was to be sold to these two persons for a total sum of Rs. 1,72,000 out of which Rs. 37,000 was paid to the seller by way of advance. The remaining amount of Rs. 1,35,000 was to be paid by the present applicants to the Canera Bank, Mandi, in equal monthly instalments already fixed by the Bank starting from March, 1990.

Clause 2 of this agreement says that:

the ownership of this vehicle will remain in the name of the first party (Mohammad Amin) along with route permit and other documents till the full and final payment of the Bank is cleared by the second party (Sardara Singh and Prem Lal Kapoor) and thereafter the second party can get the vehicle transferred in their name for which a separate power is given for the transfer of the vehicle after obtaining NOC from the Bank

Under Clause 5, the right of resumption of possession of the vehicleis given to the first party in the event of the second party making default in payment to the bank continuously for three months.

F.I.R. No. 382 of 1990 was lodged at Police Station Sundernagar alleging that Nur Ahmed, along with some Ors. , had committed theft of the vehicle which was in lawful custody of Sardara Singh and Prem Lal Kapoor. The Station House Officer, Sundernagar, impounded the vehicle DCM Toyata HID 4966 on December 16, 1990 in connection with that criminal case. Thereafter, the present applicants Sardara Singh and Prem Lal Kapoor as well as Nur Ahmed made applications before the Judicial Magistrate 1st Class, Sundernagar, u/s 457, Code of Criminal Procedure for being given custody of the vehicle.

Section 457, Code of Criminal Procedure reads:

Procedure by police upon seizure of property--(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.

The learned Magistrate directed release of the vehicle in favour of applicant Sardara Singh and Prem Lal Kapoor on certain conditions He took the view, on the authority of the decision of the Orissa High Court in Mahommed Zariff and Another Vs. Sk. Zinaullah, that it was the duty of the Magistrate to order the delivery of property to the person'' entitled to lawful possession, though he was not a registered owner. The learned Magistrate, while doing so, said in his order that "purchasers Sardara Singh and Prem Lal Kapoor are the best entitled persons to receive the possession on Superdari bond." Aggrieved by the aforesaid order, Nur Ahmed filed a revision petition under Sections 397 - 399 Code of Criminal Procedure which came to be decided by the learned Addl. Sessions Judge, Mandi. The learned Judge held that the truck be restored to petitioner Nur Ahmed who shall retain it on Superdari till the decision of the case registered by the police. He was asked to execute a Superdari bond in the sum of Rs. 2,50,000 to the satisfaction of the learned Judicial Magistrate 1st Class, Sundernagar, and was also directed not to change the nature and colour of the vehicle. He was also asked to undertake to produce the vehicle as and when required by the police and not transfer it to any other person till the decision of the case.

The trial Magistrate, u/s 457, Code of Criminal Procedure is to make such orders as he thinks fit respecting the delivery of property which is not produced before him during enquiry or trial and to the person entitled to the possession thereof. The matter is one of discretion with the learned Magistrate which is, of course, a judicial discretion to be exercised on relevant considerations. The learned Magistrate is not required to make an elaborate enquiry at the stage when he is asked to pass an order u/s 457, Code of Criminal Procedure. Nevertheless, enquiry of a summary nature is to be made by him with a view to determine as to who is the person ''entitled to the possession of the property''.

Considerations which have to weigh with the learned Magistrate, at that stage of the proceedings, are hardly in doubt. The person from whose custody the property was seized by a Police Officer is one of these considerations. The fact as to which of the parties that claim delivery of possession of the property, during the pendency of proceedings, is the owner thereof is of primary importance. That fact is also to be gone into by the Magistrate, albeit, in a summary manner.

In the case of a motor vehicle, which requires registration under the provisions of the Motor Vehicles Act, the fact of ownership can usually be determined with reference to the registration of the vehicle in the name of a party. The Motor Vehicles Act and the Rules framed thereunder, contain provisions making it incumbent on a purchaser of motor vehicle, by transfer from Anr. , to get the fact of transfer recorded in the Registration Certificate. Some courts have taken the view that in a case where property, of which possession is claimed u/s 457, Code of Criminal Procedure is a motor vehicle, primacy must be given to the party in whose name the vehicle stands registered in the record of the licencing authority under the Motor Vehicles Act. For instance, in Nandiram Vs. State of Gujarat and Others, the view taken was that the registration certificate was essential before any motor vehicle can be made use of and that any person in whose favour the certificate of registration is issued, obviously would be the owner thereof. "In those circumstances, it would be ordinarily prudent and in consonance with the provisions of the Motor Vehicles Act to allow such a motor vehicle to remain in possession of such a person in whose name the certificate of registration stands. Any other person can be taken to be a person at the most as making use of it on his behalf or if there is no consent on his part, as against his interest. In cases of this character, possession by itself would not be a true criterion for the return of the same to a person from whom it has been seized or attached by the police in relation to a case against him....

Likewise, in Kavaluri Sidda Reddy Vs. Bathala Rangaswamy Naidu and Another, the Andhra Pradesh High Court has held, following the decision of the Mysore High Court in T.C. Gopalan Nair Vs. P. Kelu and Another, that:

...From the provisions relating to the registration of motor vehicles under the Motor Vehicles Act, it is clear that the registration certificate is an essential necessity before any such motor vehicle can be made use of and that any person in whose favour this certificate of registration is issued, obviously would be the owner thereof....it would be ordinarily prudent and inconsonance with the provisions of the Motor Vehicles Act to allow such a motor vehicle to remain in possession of such a person in whose name the certificate of registration stands....

Similarly, in R.K. Jaiswal v. State of U.P. and Ors. 1984 (2) Crimes 677 the Allahabad High Court has ruled that:

...Under the Motor Vehicles Act, it is the person whose name is recorded in the registration certificate that will be held liable for the breach of the Act and for payment of compensation. In these circumstances, the learned Sessions Judge seems to be right in releasing the vehicle in favour of the persons named above...

The view that the person in whose name the vehicle stands registered may not necessarily be held entitled to its possession, while passing an order u/s 457, Code of Criminal Procedure has commended itself to the Bombay High Court in Ghaffor Bhai Nabu Bhai Tawar Vs. Motiram Keshaorao Bongirwar and Others, where, (in paragraph 14), it was observed by the learned Judge deciding the case that:

...it will not be correct to say that a sale of a motor vehicle is not complete unless the registration certificate is transferred...In the present case, the learned Magistrate has come to the conclusion that non-applicant No. 2 has proved that the applicant has executed the sale receipt in favour of non-applicant No. 2, and on that basis non-applicant No. 2 is entitled to possession. Thus, the learned Magistrate has considered the question as to whether non-applicant No. 2 has superior title though the registration record still continues to be in the name of the applicant...

The Orissa High Court appears to be of the view that the primary factor to be taken into account is the ownership of the vehicle when a decision is to be taken u/s 457, Code of Criminal Procedure In Mahommed Zariff and Another Vs. Sk. Zinaullah, , it was observed (in paragraph 6) that:

...As it has been observed, the sine qua non for the delivery of property u/s 457, is the entitlement of the person to possess. Mere possession is not decisive. A person may be in unlawful possession of the property. It has been clarified that a person may not have title or ownership of the property even then he could still be entitled to possession. This possession is not of a thief or a cheat but of a person who has right to hold it.

And later, in paragraph 8, that:

...As I have already shown, pursuant to the agreement, the petitioners became the owner of the vehicle on and from 15-1-1981. Their possession of the vehicle since that day was as owners. If they did not honour the agreement and committed breach, they could be proceeded against for breach of contract or for damages or for other reliefs including recovery of vehicle etc. under the civil law...

In Anr. decision rendered in the case of Gadadhar Baliarsingh Vs. Srinivas Misra and Others, relying upon the aforesaid decision and some other cases, it was held that:

The person entitled to possession would be one from whose possession the property was seized and such possession is not an outcome of the offence so as to render his possession unlawful. The power to ascertain as to who is the person entitled to possession vests in the Magistrate u/s 457...

And, in Paragraph 9, that:

...the petitioner from whose custody the vehicle which is alleged to have been stolen has been seized cannot claim to be in lawful possession of the same in order to claim his right to take interim custody of the vehicle as long as he is not cleared by the Court of the charge of theft....

Even in cases where the view taken is that the motor vehicle should be released in favour of the person in whose name it is registered under the provisions of Motor Vehicles Act, the basic factor taken into account was one of ownership of the vehicle. It appears clear that preponderance of judicial opinion leans in favour of finding out, though in a summary manner, the person in whom the ownership vests before directing its release u/s 457, Code of Criminal Procedure on the ground that he is the person ''entitled to the possession thereof. The fact that the vehicle is registered in the name of such a person is no more than evidence of ownership in a summary enquiry by the Court.

What is not in dispute in this case, on facts, is that the registration certificate of the truck is in the name of Mohammad Amin whose special power of attorney holder is Nur Ahmed. Further, Mohammad Amin, so far, is the owner of the truck. The fact that physical possession of the truck was with Nur Ahmed when it was taken into custody by the police, is also not in dispute though it has been urged by Shri D.C. Sharma, learned Counsel for the present applicants, that his possession was as a consequence of an offence of theft committed by him. Whether it was so, is yet to be finally determined by the learned Magistrate at the trial.

In the circumstances of the present case it must be held that the order passed by the learned Additional Sessions Judge does not deserve interference because a perusal of the opening sentences contained in paragraph 9 of his order reveal that the aforesaid relevant factors were present in his mind, though he has not referred to any precedent or principle otherwise.

The revision petition shall stand dismissed but with this direction that the trial, founded upon the First Information Report aforesaid, may be held with expedition. The petitioners would, however, be liable to act according to the undertaking given by them before this Court on January 24, 1991, referred to in the order of that date on Cr. M. P. No. 13 of 1991.