1. The petitioner is the 1st accused in Crime No. 24/1980 of Kodur Police Station in Cuddapah District. The 1st respondent filed a complaint under Section 409 read with Section 34 and 109 I.P.C., against the petitioner and another alleging that the petitioner had purchased the lorry bearing number APD 5196 under the purchase with Merchantile Credit Corporation, Madras, that the petitioner sold the lorry to one Mallikarjuna Chetty and delivered possession to him on 20th June, 1978 that subsequently Mallikarjuna Chetty sold the lorry to the 1st respondent on 27th January, 1979 and delivered possession of the Lorry along with the Registration Certificate Book and permits. It was alleged that the 2nd accused was a contractor in Andhra Pradesh Mining Corporation, and for transporting the goods the took the vehicle on lease from the 1st respondent and the lorry was entrusted to the 2nd accused along with Registration Certificate Book and permits on 12th April, 1979. It is further stated the the petitioner with the connivance of 2nd accused failed to deliver the lorry to the 1st respondent. Thereupon, the 1st respondent preferred a complaint on 14th March, 1980 in the Court of the Judicial First Class Magistrate, Nandalur, and it was sent to Kodur Police Station under Section 156(3) Cr.P.C. on 18th March, 1980 and it was registered as Crime No. 24/1980. The 2nd respondent, that is the Station House Officer, Kodur, seized the vehicle on 26th January, 1981 and produced it in the Court and also filed a charge-sheet against the accused on the same day. The 1st respondent filed Crl. Mp. No. 126/1981 under S. 451 Cr.P.C. for release of the vehicle on 27th January, 1981. The Magistrate passed an order directing its release in favour of the 1st respondent. On the same day, the petitioner also filed Crl. Mp. No. 127/1981 and Crl. Mp. No. 130/1981 for release of the lorry in his favour. The three petitions were heard by the Judicial First Class Magistrate, Rajampet, on 28th January, 1981 and the learned Magistrate released the vehicle in favour of the 1st respondent. Questioning his order the petitioner has filed this petition.
2. It is submitted by the learned counsel for the petitioner that the R. C. Book and the way permits issued under the Motor Vehicles Act with respect to the vehicle stand in the name of the petitioner, that the vehicle was in his possession when it was seized on 26th January, 1981 and under Section 451 Cr.P.C. the property has to be delivered to the person in whose name the vehicle stood registered, for he is, prima facie, entitled to its possession. It is further submitted that the matter is of a civil nature, that suits are pending against the 1st respondent and the Criminal Court has no jurisdiction to go into the question of ownership when the Civil Court is seized of the matter.
3. On the other hand, it is submitted by the learned counsel for the 1st respondent that, in view of the allegations in the charge-sheet, the learned Magistrate is justified in delivering the custody of the vehicle to the 1st respondent. He also submitted that the difficulty of the Registration Certificate standing in the name of the petitioner can be got over by the petitioner leasing out the lorry to the 1st respondent.
4. The learned Magistrate directed the delivery of the vehicle to the 1st respondent on the ground that the Court had already passed an order releasing the lorry in favour of the petitioner in Crl. Mp. No. 126/1981 and also, according to the allegations in the charge-sheet the petitioner had cheated the 1st respondent and induced him to deliver possession of the lorry to him.
5. Normally, I would not have interfered with the order of the Magistrate. But it is a lorry and it has to be used. It cannot be kept idle. It is not disputed that the Registration Certificate and the way permits of the lorry stand in the name of the petitioner. They do not stand in the name of the 1st respondent. If so, the vehicle could be used only by the petitioner. If the 1st respondent is permitted to use the vehicle and if he were to violate any of the conditions of the permit, then it is the petitioner that will be held liable but not the 1st respondent. Similarly, if there is an accident, and compensation has to be paid under the Motor Vehicles Act, it is the petitioner that will be held liable but not the first respondent. In the light of these peculiar circumstances, it will be more appropriate to release the lorry in favour of the petitioner. The Court cannot compel the petitioner to lease out the lorry to the 1st respondent.
6. In this connection I will refer to the decisions cited by the learned counsel for the petitioner. In Gopalan Nair v. Kalu, (1973 Mad LJ (Cri) 336) : (1974 Cri LJ 210) it has been held by the Mysore High Court, that when a motor vehicle is seized by the police, one has to consider the effect of the provisions of the Motor Vehicles Act for finding out the true claimant before passing order relating to such property during the pendency of the proceedings under Section 516-A of the Criminal P.C. (old). 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. In case of any transfer of any ownership in respect of that motor vehicle, the procedure is contemplated under Section 31 of the Motor Vehicles Act and till any such transfer of ownership is entered in the certificate of registration, one has to take it that the person in whose favour such a certificate of registration is issued by the Motor Transport Authorities is the owner and such a person is entitled to remain in possession of the vehicle. Non-compliance of certain provisions of the Motor Vehicles Act sometimes makes the owner responsible. 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.
7. In Mahamaya Dasi v. Sanat Kumar : AIR1968Cal564 it has been held by the Calcutta High Court that, in the case of a motor car with regard to which there are specific provisions in the statute enjoining certain obligations and non-conformance thereto will bring the offender within the ambit of the penalties provides for under the relevant Act and the Rules. Motors Vehicles are not just ordinary 'Chattels personal' and the owner thereof has got rights as well as liabilities under the statute. Sections 22, 31 and 112 of the Motor Vehicles Act as well as the relevant Rules will pinpoint the same. For any deviation the ultimate owner who is neither responsible for the same nor even aware thereof would be liable to prosecution. Accordingly, it is just and fair that when an order for making over the custody of an article which is a motor car is passed, the question has to be approached against the above background, as otherwise it may tend to create a Gilbertain situation. The party who is the registered owner of the vehicle but has been denied the right of possession and user of the said car would nonetheless be liable for the penalties accruing, while the car is in the custody of somebody else. It is desirable therefore in such cases that the custody of such a car should either be with a third party like a Garage upon proper terms and conditions or with the registered owner thereof.
8. I agree with the reasoning of these decisions.
9. In the result, I set aside the order of the learned Magistrate and direct that the lorry APD 5196 should be released to the petitioner (Kavaluri Sidda Reddy) on condition that he executes a bond for a sum of Rs. 50,000/- with two sureties each for a like sum to the satisfaction of the Judicial Magistrate of First Class, Rajampet, and with a further condition that he should not lease our, sub-let or sell it to anybody and he should also produce that lorry as and when required by the Lower Court. Accordingly, this petition is allowed.
10. Order accordingly.