Cri. W. P. No. 242 of 1987

17th June, 1991

Petitioner Counsel: L. R. Chari, Ms. R. B. Amrolia
Respondent Counsel: P. Janardhan, S. G. Samant, C. M. Kothari

JUDGMENT

JUDGMENT :- By this writ petition invoking the powers of this Court under Article 227 of the Constitution of India and its inherent powers saved under section 482 of the Code of Criminal Procedure, 1973, the Petitioner has challenged an order of the Additional Sessions Judge, Greater Bombay, by which he reversed the order of the Metropolitan Magistrate, 18th Court, Girgaum, Bombay, directing that two motor cycles and one jeep, which are the subject matters of the present petition, be handed over to the Petitioner on his executing a Bond in the sum of Rs. 1,50,000/- on usual terms.

2. The Petitioner is the original complainant in C.R. No. 597 of 1985 which was registered with Dadasaheb Bhadkamkar Marg Police Station under section 406 of the Indian Penal Code. Though the Petitioner prayed for setting aside the whole order of the learned Additional Sessions Judge, Greater Bombay, pertaining to the custody of one Honda motor cycle, one Yamaha motor cycle and one jeep, the learned counsel for the Petitioner, Mr. Chari stated at the bar that he would not be pressing the claims in respect of the two motor vehicles. I shall, therefore, consider the correctness of the order of the learned Additional Sessions Judge only insofar as it pertains to the jeep MRF 8319.

3. It is the case of the complainant that he purchased the jeep MRF 8319 from Respondent No. 1, Dilawar Khan, in 1973 when Dilawar Khan was in need of Rs. 25,000/-. He handed over the Registration Certificate and other duly signed documents to the Petitioner after receiving the money. Sometime later, Dilawar Khan wanted to get the jeep repaired at Bhopal and desired to have the Registration Certificate to be carried with the vehicle. On this assurance, Dilawar Khan took back the jeep along with the Registration Certificate. Later, after getting the vehicle repaired he colluded with his servant Ajit Dandekar and got the jeep transferred in favour of Ajit Dandekar. Ajit Dandekar in turn claimed that Dilawar Khan had purchased this jeep in 1982 from the Collector of Central Excise in auction and on 11-10-1982 he transferred it in his own (Dilawar Khan's) name and thereafter the said jeep came to be transferred to Ajit Dandekar. According to Ajit Dandekar, the original Taxation and Registration Certificates were misplaced by Dilawar Khan who applied for and obtained duplicate certificates which were duly issued and thereafter the said vehicle was transferred to the name of Ajit Dandekar by Dilawar Khan on 7-12-1984.

4. The charge-sheet was filed before the learned Magistrate sometime in the year 1986. Before the vehicle in question was actually produced or put in the custody of the Court during the trial of the case, the Petitioner made an application to the learned Magistrate praying that he may be granted temporary custody of the jeep in question subject to the usual conditions such as not to dispose of or remove any part, etc. and to produce the said property in Court whenever called upon to do so. The Petitioner filed before the learned Magistrate the T.C.R., T.T.O. and other forms which were alleged to have been signed by Dilawar Khan in respect of his application. Dilawar Khan did not file any say denying the facts alleged in the application made by the Petitioner before the Court. Though Ajit Dandekar filed his say before the Magistrate and claimed that he was entitled to custody of the said jeep as he was the owner thereof, he did not produce any receipt or other documents to show that he had paid any consideration to Dilawar Khan, his employer, nor any material was placed before the learned Magistrate in support of his plea.

5. On the material placed before him and after hearing the parties concerned, the learned Magistrate made an order dated 17th March, 1986 in which he took the view that the circumstances placed before him, particularly the failure of Dilawar Khan to deny the averments made by the Petitioner in support of his application and the failure of Ajit Dandekar to produce any material to show that any consideration had been paid by him to Dilawar Khan for transfer of the jeep, spelt out fishy collusion of Dilawar Khan and Ajit Dandekar to defeat the otherwise lawful claim of ownership of V. K. Handa. The learned Magistrate, therefore, took the view that the Petitioner was entitled to the temporary custody of all the three vehicles and directed that all the three vehicles be handed over to the Petitioner on his executing a Bond in the sum of Rs. 1,50,000/- on usual terms.

6. The order of the learned Magistrate dated 17th March, 1986, was challenged before the Sessions Court, Greater Bombay, by Criminal Appeal No. 110 of 1986 by Dilawar Khan and Criminal Appeal No. 103 of 1986 by Kekoo Soli Sethana (Respondent No. 3 herein). Since Kekoo Soli Sethana's appeal pertained only to one of the motor cycles, I need not consider the case made out by him. Turning to the case made out by Dilawar Khan in his Criminal Appeal No. 110 of 1986, he contended before the Sessions Judge that he had at no time sold the jeep to the Petitioner and that the signatures appearing on the T.T.O. forms and the receipts were not his signatures but were forged ones. He contended that the jeep concerned was all along in his possession from the date he purchased it from the Collector of Central Excise, Bombay, and that on 7-12-1984 he had sold the jeep to his Manager Ajit Dandekar. He, therefore, prayed for setting aside the order dated 17th March, 1986, passed by the learned Magistrate. Curiously, though Ajit Dandekar had filed his say before the learned Magistrate and had claimed custody of the jeep, he does not appear to have filed any proceedings to challenge the order dated 17th March, 1986 made by the learned Magistrate granting custody of the jeep to the Petitioner.

7. By his order dated 16th February, 1987, the Additional Sessions Judge, Greater Bombay, took the view that though the proceedings before him were styled as criminal appeals, they were in fact criminal revisions and he purported to entertain them as applications invoking the revisional powers of the Sessions Court. On merits, so far as the custody of the jeep in question was concerned, the learned Additional Sessions Judge took the view that although Ajit Dandekar had not produced any receipt for payment of the price of the jeep to Dilawar Khan, the fact that the Registration Book and the Taxation Certificate Book duly issued by the R.T.O., Bombay, showed his name as the present owner and the fact that there was no explanation from the Petitioner as to why he had failed to get the registration transferred in his name, despite receipt of duly signed T.T.O. forms duly signed by Dilawar Khan on the 6th March, 1983, were significant. He also took the view that normally the vehicle should be returned to the registered owner, as it is he who is called upon by the R.T.O. or any other authority if anything goes wrong with the vehicle and further the registered owner is answerable under the Motor Vehicles Act in respect of the vehicle standing in his name. Since on record Ajit Dandekar was the registered owner of the jeep and as Dilawar Khan had challenged his signature on the T.T.O. forms and the receipt produced by the Petitioner, the learned Additional Sessions Judge took the view that Ajit Dandekar was the proper and fit person to whom the custody of the jeep should have been given by the Magistrate. In this view of the matter, he set aside the order of the Magistrate giving custody of the jeep to the Petitioner and ordered that the custody of the jeep MRF 8319 be handed over to Ajit Dandekar on his Personal Bond of Rs. 50,000/- with one surety of like amount. It is this order dated 16th February 1987 made by the learned Additional Sessions Judge, Greater Bombay, which is seriously impugned in the present proceedings before this Court. Since Mr. Chari, learned counsel appearing for the Petitioner, has not pressed his challenge to the order of the learned Additional Sessions Judge dealing with custody of the two motor cycles, I shall only deal with the challenge to the said order only insofar as it pertains to the custody of the jeep MRF 8319.

8. Mr. Chari, learned counsel appearing for the Petitioner, fairly conceded that though the charge-sheet had been filed by the police sometime in the year 1986, there did not appear to be any material to show that the jeep in question had been produced before the Magistrate in the trial either physically or symbolically. He, therefore, contended that though it was not clear from the order of the learned Magistrate as to under which section the learned Magistrate had exercised jurisdiction, the order of the learned Magistrate could be said to be one really falling under section 457 of the Code of Criminal Procedure, 1973. Proceeding further, Mr. Chari submits that an order under section 457 could be either an interim order or it could be a final order depending on the circumstances of the case. In his submission, considering the fact that the trial had commenced by the charge-sheet which had already been filed against the accused and the fact that the jeep in question had not been produced in the trial, there was no occasion for making a final order under section 457 of the Code of Criminal Procedure, 1973, and the order could be considered only as an order for temporary custody of the property, namely, the jeep in question. His next contention is that considering the interlocutory nature of the order passed by the learned Magistrate under section 457 of the Code, such an order could not have been subject to revision under section 397 of the Code as it was specifically barred under sub-section (2) of section 397. According to Mr. Chari, the two Criminal Appeals Nos. 103 of 1986 and 110 of 1986 were not maintainable in any view of the matter since an order under section 457 of the Code is not made appealable under the Code of Criminal Procedure and if they were to be treated as applications, for exercising revisional powers, they were barred by section 397(2) of the Code.

9. Mr. Chari relied upon a judgment of the Allahabad High Court in Shri Bharat Mahey and others vs. The State of U. P. and others, 1975 Cri.L.J. 890. That case arose under the provisions of Essential Commodities Act. Certain tins of Dalda had been seized under the provisions of the said Act and an application was made to the Judicial Magistrate for release of the Dalda and tins in question. The learned Judicial Magistrate rejected the said application and the said order was challenged by way of revision before the High Court. The High Court took the view that the order that was passed by the learned Magistrate finally disposed of the tins of Dalda and that it was not an interim arrangement for the delivery, custody or production of the case property, as and when required by the Court. The corpus of the tins ceased to exist by the sale of the goods and it could not be said that the sale proceeds would adequately represent the corpus of the property in question. After considering the provisions of sections 457(1), (2) and 458(1) of the Code of Criminal Procedure, 1973, the High Court held that both final orders and temporary orders with regard to the disposal of the property are contemplated under these two sections. Since, however, the Court came to the conclusion that the order impugned before it could not be deemed to be an order in the nature of an interim order, and was really a final order regarding the disposal of the goods in question, the powers of the High Court in revision were not barred.

10. This Court, in Ghafoor Bhai Nabbu Bhai Tawar vs. Motiram Keshaorao Bongirwar and others, 1977 Mh.L.J. 548, while construing the provisions of section 457 of the Code of Criminal Procedure, held that by the words 'and such property is not produced before the Criminal Court during the inquiry or trial' used in the section, all that the Legislature intended to convey is that the property has not been produced before the Magistrate. Such non-production could be on account of (1) the absence of any inquiry or trial, or (2) though the enquiry or trial is pending, the investigation agency had not yet produced it in the Court. The Court then held that the provisions of section 457 of the Code were sufficiently wide so as to cover the case where the Magistrate is called upon to pass an order about disposal or custody of a property even during the investigation stage of the matter.

11. Mr. Chari contends that these authorities clearly point out that it is permissible to the Magistrate to pass an order with regard the custody of the property even while the investigation is under progress or after the investigation is over and the trial has commenced but before the property is actually produced during the course of the trial. He submits that in the latter case, any order passed by the Magistrate can never be a final order as the trial has yet to commence and the order would necessarily be an interim arrangement pending the trial.

12. In my view, the contention raised by the learned counsel for the Petitioner has merit and has to be accepted. As pointed out by Gadgil, J., in Ghafoor Bhai's case (supra), an order may be passed under section 457 of the Code purely at the stage of investigation or even after the charge-sheet had been filed, but before the property was actually produced before the Court during the trial. In the latter case, any order passed by the Magistrate must necessarily be an interlocutory order subject to the final orders to be passed after the trial has concluded.

13. Turning to the merits of the case, Mr. Chari argued that even if it be assumed that the powers of the Sessions Court in revision could be invoked to impugn the order of the learned Magistrate dated 17th March, 1986, it is trite position in law that the powers of revision ought to be sparingly used and exercised only when there is clear lack of jurisdiction or where the order is patently absurd, perverse or results in grave miscarriage of justice. None of these elements is present in the order of the learned Magistrate, according to Mr. Chari. The learned Magistrate has, on the basis of the material placed before him, drawn certain conclusions as to who would be the fit and proper person to be in custody of the jeep in question pending the criminal trial. These conclusions have been arrived at by appreciation of the material placed on record and these conclusions of facts could not be disturbed by a revisional Court.

14. Lastly, Mr. Chari contended that there is no universal principle that a vehicle must necessarily be handed over to the custody of the person in whose name the registration stands. In this context, he cited the judgment of a Division Bench of this Court in Kishan Pandurang Kagde vs. Baldev Singh Gian Singh and another, 1977 Mh.L.J. 656, as an authority for the said proposition. In Kishan's case (supra), the Division Bench analysed the arguments based on section 31 of the Motor Vehicles Act and pointed out that there was nothing in the said provision which dealt with transfer of ownership of the motor vehicle, which like any movable property is governed by the Sale of Goods Act. The Division Bench pointed out that section 31 of the Motor Vehicles Act merely lays down that after change of ownership, a corresponding change in the registration certificate should be recorded and that the transfer of ownership takes place from the date of sale and not from the date on which the name of transferee is recorded in the registration certificate. According to Mr. Chari, the sale of the jeep in question took place in 1973 when Dilawar Khan received the consideration, signed the necessary Transfer Forms and handed over possession of the jeep to him. The fact that the registration of the vehicle had not been changed in the Records of the R.T.O. was wholly immaterial. I think that there is substance in this contention also which is supported by the authority of the Division Bench.

15. Mr. Samant, learned counsel appearing for the first and third Respo-ndents, vehemently joined issue with the contentions of Mr. Chari. Before dealing with the arguments of Mr. Samant, it may be straightway noticed that Mr. Samant' s client, Dilawar Khan, had not claimed custody of the jeep either before the Magistrate or before the Additional Sessions Judge. Such a claim was put forward in both the Courts by Ajit Dandekar (Respondent No. 5 in this petition) but, curiously, he has chosen to remain absent. The arguments of Mr. Samant, though of assistance to the Court, can hardly be treated as the arguments of Respondent No. 5 regarding the order of the learned Sessions Judge.

16. Mr. Samant argued that the order in question was not an interlocutory order at all. He referred to the judgment of the Supreme Court in Amar Nath and others vs. State of Haryana and others, AIR 1977 SC 2185 and in Madhu Limaye vs. State of Maharashtra, AIR 1978 (Cri.LJ. 165) SC 47, and pointed that after noticing the historical background against which section 397(2) was brought on to the statute book, the Supreme Court in these two cases accepted the proposition that every order which is not final, need not be an interlocutory order. He also pointed out that in these judgments the Supreme Court has laid down that there could be an intermediate category of orders which were not final and yet could not be considered as merely interlocutory as they decide issues of moment and determined or seriously affected the rights of a party. Relying on these judgments, Mr. Samant contended vehemently that the order passed by the learned Magistrate was not an interlocutory order at all.

17. While the proposition of law canvassed by Mr. Samant, on the basis of the aforesaid two judgments of the Supreme Court, is unexceptionable, I am not in a position to accept his contention that the order passed by the learned Magistrate was an order of the nature falling within the intermediate category as contemplated by the said Supreme Court judgments. In my view, the learned Magistrate's order does not determine any issue of moment, nor does it determine the rights of either party, nor can it be said to prejudice the rights of either party. Mr. Samant's contention that by the said order, the right of possession of the accused is disturbed or affected, does not cut ice. All interim orders, in their impact, must necessarily affect some party or the other, as they are obviously in favour of one and operate against another. By this criterion, every interim order must necessarily fall into the intermediate category as contemplated by the Supreme Court. In my view, the present order does not fall in the intermediate category and it is an interlocutory order pure and simple. Mr. Samant then cited the judgment of the Supreme Court in Ram Prakash Sharma vs. State of Haryana, AIR 1978 SC 1282, in his attempt to persuade me that the order of the learned Magistrate is an interlocutory order. I am afraid, there is nothing of this nature decided by the Supreme Court in Ram Prakash Sharma's case (supra). All that the Supreme Court has held in this case that the Court has to be circumspect before releasing the property which comes in its custody and has to exercise its jurisdiction judiciously and wisely. In my judgment, the order of the learned Magistrate dated 17th March, 1986, is clearly an interlocutory order. It was not appealable under any express provisions of the Code of Criminal Procedure and, being an interlocutory order, it was also not revisable under section 397 of the Code, on account of the bar under sub-section (2) of that section.

18. Though the above finding should really conclude the petition, I shall deal with the contentions on merits, since they have been canvassed, on the assumption that the order of the learned Magistrate could have been subjected to the revisional jurisdiction of the Sessions Court under section 397.

19. On merits, the learned Magistrate, after sifting the material before him, came to the conclusion that the Petitioner was entitled to the temporary custody of the jeep in question. He rejected the argument that the vehicle must be returned to the person in whose name it is registered. The learned Sessions Judge, at least so far as the custody of the jeep is concerned, has only given one reason, namely, that the jeep stood in the name of Ajit Dandekar and therefore he was the person who was best entitled to custody. I am afraid, this is too simplistic view of the matter and cannot be accepted. As pointed out by the Division Bench of our High Court in Kishan Pandurang Kagde vs. Baldev Singh Gian Singh and another, 1977 Mh.L.J. 656, the mere fact that the registration of the vehicle stands in the name of a party is not conclusive. If the Magistrate, upon appreciation of the material before him, records a finding that the ownership and possession had passed to a particular person, then it is open to the Magistrate to direct the vehicle to be handed over to the custody of such person, notwithstanding that the registration stands in the name of another. I respectfully agree with the views expressed by the Division Bench of our High Court in Kishan's case that the transfer of ownership takes place from the date of sale and not from the date on which the transfer is recorded. Mr. Samant relied on the judgments in Nandiram vs. State of Gujarat and others, 1967 Cri.LJ. 483 and in U. Kariyappa vs. P. Sreekantaiah and another, 1980 Cri.LJ. 422, in support of his contention that where a vehicle is seized in connection with the criminal offence, the only order that the Magistrate can make for custody of the vehicle must be in favour of the person in whose name the registration of the vehicle stands. In my view, neither of these two cases lays down any such invoilable proposition of law. Both these judgments point out that such is the normal rule unless another person makes out a superior title. In the case of the Petitioner, the learned Magistrate has recorded the finding that the Petitioner had made out a superior title and directed handing over of the jeep to the Petitioner. The learned Additional Sessions Judge was not right in interfering with the said order in the purported exercise of his revisional powers. The limitations on the exercise of revisional powers are too well settled to call for repetition here. Suffice it to say that the learned Additional Sessions Judge exceeded his revisional powers in interfering with the order of the learned Magistrate. The order deserves to be set aside by this Court in exercise of its constitutional and inherent powers.

20. In the result, the petition is partly allowed. The order of the Additional Sessions Judge, dated 16th February, 1987, made in Criminal Appeal No. 103 of 1986 and Criminal Appeal No. 110 of 1986, is set aside so far as it pertains to the Jeep MRF 8319. It is maintained with regard to the two motor-cycles as the Petitioner has not challenged that part of the order. However, it will be open to the learned Magistrate to impose such conditions upon the Petitioner with regard to the user of the jeep MRF 8319 pending the disposal of the criminal trial pending before the Magistrate. These conditions, apart from the conditions that the learned Magistrate had already imposed, could also be of the nature of directing the Petitioner to deposit such reasonable amount, as the learned Magistrate finds reasonable, for the user of the jeep during the pendency of and subject to final orders in the trial. The learned Magistrate shall of course hear all the parties concerned before making any such order.

21. Rule made accordingly partly absolute with no order as to costs.

Petition partly allowed.