Skip to content


Dakhini Prasad Srivastava Vs. State of Uttar Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1978CriLJ204
AppellantDakhini Prasad Srivastava
RespondentState of Uttar Pradesh
Excerpt:
- - learned counsel for the opposite party has argued that this court is now seized of the entire matter and this court can itself set aside the order of the magistrate, if it is satisfied that it is illegal and improper and based on misreading of evidence. the learned magistrate has given good reasons for holding that the car would be deemed to have been recovered from the possession of dakhini prasad srivastava. in fact it is admitted by hari babu as well that the car had been taken by dakhini prasad srivastava, the car was parked in front of the house of the revisionist dakhini prasad. it was clearly held in that case that it was not the duty of the court to make enquiry and give a finding with regard to the ownership of the property......20-9-1976 for the disposal of that application. on that very day another application was moved by hari babu, opposite party claiming that that car belonged to him and the same be given in his custody. the report of the station officer was called for on the basis of that application and the same was ordered to be put up for disposal on 18-9-1976. on 18-9-1976 on the basis of the report of the sub-inspector, an ex parte order was passed ordering that the car be released in favour of the owner on giving proof of registration in his name on furnishing security of rs. 5,000.00. it appears that on the basis of that order possession of the car was taken by hari babu, but he subsequently brought it back and returned it to the police station as his surety had withdrawn and the surety was.....
Judgment:
ORDER

H.N. Kapoor, J.

1. This revision is directed against the order and judgment dated 19-9-1977 of Additional Sessions Judge, Allahabad in Criminal Appeal No. 94 of 1977, setting aside the order of the Additional Chief Judicial Magistrate dated 19-5-1977, by which he had ordered that Ambassador Motor Car No. UTB 9376 would be released in favour of Dakhini Prasad Srivastava, on his executing a bond for Rs. 10,000.00 with condition to produce the car if and when required by the authorities.

2. The facts giving rise to this revision are as follows :-

On 16-9-1976 at 11.40 P. M. Sub-In-spepctor Sri Chandra Shekhar Sharma along with Constable Pashupat Nath while patrolling on Zero Road found an Ambassador Car No. UTB 9376 lying in the lane infront of the roadways bus stand without any care and owner. He considered the car to be an abandoned one and seized it and brought it to the Police Station Kotwali and made an entry in the G. D. report No. 79. On 17-9-1976 the present petitioner, Dakhini Prasad Srivastava made an application Under Section 457, Cr.PC claiming the car to be his and requested that it may be given in his custody. The Magistrate called for the police report and fixed 20-9-1976 for the disposal of that application. On that very day another application was moved by Hari Babu, opposite party claiming that that car belonged to him and the same be given in his custody. The report of the Station Officer was called for on the basis of that application and the same was ordered to be put up for disposal on 18-9-1976. On 18-9-1976 on the basis of the report of the Sub-Inspector, an ex parte order was passed ordering that the car be released in favour of the owner on giving proof of registration in his name on furnishing security of Rs. 5,000.00. It appears that on the basis of that order possession of the car was taken by Hari Babu, but he subsequently brought it back and returned it to the police station as his surety had withdrawn and the surety was discharged. On 20-9-1976 the present revisionist brought it to the notice of the Magistrate that his application remained undisposed of. The learned Magistrate then ordered that the order passed by him on 18-9-1976 was stayed and that both the parties should produce evidence in support of their respective claim. After hearing both the parties and considering the entire evidence brought on the record, the learned Magistrate passed the order dated 19-5-1977 that the car would be released in favour of the present revisionist, Dakhini Prasad Srivastava on his executing a bond of Rs. 10,000.00. Hari Babu then filed an appeal against this order and that appeal was allowed by the learned Sessions Judge by the impugned order dated 19-9-1977, Feeling aggrieved Dakhini Prasad has filed this revision.

3. learned counsel for the applicant has argued that no appeal lay against the order of the Magistrate and as such the order passed by the learned Sessions Judge in appeal is without jurisdiction. There is certainly force in this argument. The order was passed Under Section 457, Cr.PC The only provision for filing an appeal is Under Section 458(2), Criminal P. C. but that obviously confines itself to the order Under Section 458(1), Criminal P. C. Section 458, Cr.PC reads as follows:-

458. (1) If no person within such period establishes his claim to such property, and if the person in whose possession such property was found is unable to show that it was legally acquired by him, the Magistrate may by order direct that such property shall be at the disposal of the State Government and may be sold by that Government and the proceeds of such sale shall be dealt with in such manner as may foe prescribed.

(2) An appeal shall lie against any such order to the Court to which appeals ordinarily lie from convictions by the Magistrate.

There is thus general provision for filing appeal against every order passed Under Section 457, Cr.PC The learned counsel for the opposite party, however, argued that the order passed by the Sessions Judge may be treated as an order passed by him in his revisional jurisdiction. The learned Sessions Judge has made a reappraisal of the entire evidence. It is difficult to hold that he would have given the same decision in case he was dealing with the case as a revision and not as an appeal. learned counsel for the opposite party has argued that this Court is now seized of the entire matter and this Court can itself set aside the order of the Magistrate, if it is satisfied that it is illegal and improper and based on misreading of evidence. There can certainly be no limit to the powers of this Court in this respect.

4. One of the illegalities pointed out in the order of the Magistrate is that he had reviewed his earlier order releasing the car in favour of Hari Babu which he could not do. Learned Counsel for the applicant has, however, argued that the earlier order was in the nature of an interim order and as such an interlocutory order. It was so held by Hari Swarup, J. in the case of Nathu Lai v. State 1975 All Cri C 333 : 1976 Cri Lj 358. According to him such interlocutory order could be reviewed by the Mat/.s-trate at any stage as was held in the case of Desh Raj v. State 1973 Cri LJ 1415 (All). It may be observed here that the decision reported in 1975 All Cri C 333 : 1976 Cri LJ 358 /pertains to a case tinder Section 451. Cr.PC and not Under Section 457, Cr. K C. But there are special circumstances in this case that the car was brought back to the police station as the security had been withdrawn and the surety was discharged. Moreover, when this Court is seized of the entire matter, it is possible for this Court to set aside that order even at this stage, if it was found to be improper or illegal and to pass a fresh order which may be similar to the subsequent order passed by the Magistrate on 19-5-1977, if the ends of justice so require.

5. Another illegality that has been pointed out by the learned counsel for the opposite party in the order dated 19-5-1977 is that the learned Magistrate lias mis-read the evidence treating papers Nos. 28 and 29 as dated 23-1-1976 while the evidence of Mewa Lai, clerk of the office of the R. T. O. shows that these papers were filed along with the application dated 29-9-1976. There is over-writing on the dates of these two papers and it appears that 23-1-1976 at the top has been written over some other date. They are both printed forms of R.T.O. office and bear signatures of Hari Babu for transferring the car to Dakhini Prasad Srivastava. It appears it was not argued even before the Sessions Judge that the dates of these papers had been altered and 23-1-1976 had been over-written. However, the fact remains that these important papers bear the signatures of Hari Babu which he has not denied. The revisionist also has in possession a stamped receipt for Rs. 7.500.00 signed by Hari Babu. An attested copy of the same is on the record; the original was shown to me. The cmly explanation of Hari Babu is that he igofc extensive repairs done in the car by one Gango Prasad and because he was not able to pay the charges, Ganga Prasad was made a share-holder in the property of the oar and Ganga Prasad got some papers signed by him. It :is not understood as to why the printed papers were also got signed. However, this Court is not required to give any finding whether this car hed been actually sold by Hari Babu to Dakhini Prasad Srivastava and Dakhini Praaad Srivastava had paid the price of Rs. 7,500.00. Prom the application made by Hari Babu, it appears that there were some money dealings between Hari Babu and Dakhini Prasad Srivastava. Hari Babu has given different statement about the oar having been taken by Dakhini Prasad Srivastava from him. In one application he stated that Dakhini Prasad Srivastava had borrowed much before 9-8-1976 which amount he did not return and so he had lodged F. I. R., but in subsequent affidavit he stated that Dakhini Prasad Srivastava had taken the car on 10-9-1976, when Hari Babu informed a 'Neta' Ram Chandra V-aish, who had telephoned to the police and then the oar was recovered. The clerk of the R. T. O. office has stated that Hari Babu had informed the R. T, O. office on 2-8-1976 that his car had been taken away by Dakhini Prasad Srivastava. This application dated 2-8-1976 was summoned from the office but the document was not produced with'the endorsement that a wrong date was given. These various contradictory statements do go against Hari Babu and throw a doubt about the bona fides of his claim. He did not have the courage to lodge the first information report. He only managed to take possession of the car with the help of some 'Neta'. It is clear from the affidavit of Hari Babu that the police must have seized the car on the basis of some information received by it from that 'Neta'. but it is surprising that it was shown that it was, lying abandoned while the police patrolled and so the car was seized. The learned Magistrate has given good reasons for holding that the car would be deemed to have been recovered from the possession of Dakhini Prasad Srivastava. In fact it is admitted by Hari Babu as well that the car had been taken by Dakhini Prasad Srivastava, The car was parked in front of the house of the revisionist Dakhini Prasad. Many persons do not have garages and keep their vehicles in a lane. The vehicles cannot be considered to be abandoned as they would be deemed to be in the constructive possession of those persons. I, therefore, agree with the findings of the learned Magistrate that it was recovered from the possession of the present revisionist.

6. The question now arises as to who should be held to be entitled to its possession within the meaning of Section 457, Cr.PC There was no investigation in this case nor any prosecution. Under Such circumstances the normal rule is that the property should be delivered back to the person from whose possession it was taken. It was so held by a Division Bench of this Court in the case of Muneshwar Bux Singh v. State : AIR1956All199 . 1 also had occasion to take similar view in the case of Brijendra Singh v. BriJ Kumar Gupta 1975 All Cri C 270 (2) : 1976 Cri LJ 467. Desai J- has also taken similar view in the case of M/s. Pursjhot-tam Das Banarsidas v. State : AIR1952All470 . He went to the extent of observing that the possession of the person through whom possession of the property w-as taken would be deemed to be 'unlawful or illegal only when prosecution had been launched and he had been convicted for some offence. In the case of Muneshwar Bux Singh v. State 1956 Cri LJ 363 (All) the Division Bench observed as follows (at page 366 of Cri LJ):-

We can visualize only three instances in which the property recovered from the possession of a person may be handed over to some other person. These three instances are:

1. When the person from whose possession the property is recovered denies that it was recovered from his possession. Such a situation might arise in those cases where some stolen property is recovered from the possession of a [person and the plea of the person from whose possession it is recovered is that it was planted. In such a case even though no inquiry or trial be held by a Criminal Court, a Court acting Under Section 523, Cr.PC can hand over this property to some person whose entitlement to possession is satisfactorily established after inquiry.

2. Where the property Ss recovered from the possession of a person, but this possession has been acquired either in a dishonest or unlawful manner.

3. Where the person from whose possession the property is seized alleges that he is only in temporary custody of this property and it belongs to some one else.

It was clearly held in that case that it was not the duty of the court to make enquiry and give a finding with regard to the ownership of the property.

7. {learned counsel for the opposite party has argued that the very fact that the vehicle was registered in the name of Harl Babu at the time of occurrence is sufficient for holding that the possession of the (present revisionist would be unlawful and as such it should have been released in favour of Har Babu on the basis of Registration papers, No doubt the record which was brought by the clerk of the & T. O. office shows that temporary authorisation had been issued in the name of Hari Babu but the paper which is on the record ifhows that name of Itamesh Chand continued till 7-7-1976 although the allegations are that the vehicle was purchased from Ramesh Chand on 6-8-1975 and it was got transferred in his name by Hari Babu on 23-1-1976. The revasjonist however, filed an insurance certificate in his favour. The learned counsel has stated that the revisionist too obtained a temporary authorisation in his favour dated 4-10-1976. That paper is of course not on the record and is obviously of a date after 16-9-1976. The point, however, to be decided is whether in every case a car which is required to be registered has got to be released in favour of the Registered owner Under Section 457, Cr.PC or not. In the present -case there is a very serious dispute about the real ownership of the vehicle. It is a matter which requires to be settled by a Civil Court. In case it Is correct that the revisionist has purchased the car. he could have taken delivery of the car from the seller after paying the price and could have applied for registration of his name subsequently. It cannot therefore be said that even in such a case the police can seize the car and deliver it to another person without there being any criminal case or finding of a Criminal Court against revisionist. I am, therefore, not prepared to hold that in every case when the vehicle is required to be registered under Motor Vehicles Act. the vehicle has got to fee released In favour of the person in whose name the vehicle is registered. After considering the entire evidence on the record and all the circumstances of the case, I am of the opinion that the vehicle should have been released an favour of the present revisionist Dakhins prasad Srivastava .and the order passed by the learned Magistrate dated 19-5-1977 was proper.

8. In the result the revision is allowed. The order of the learned Sessions Judge dated 19-9-1977 is set aside and the order passed by the Additional Judicial Magistrate dated 19-5-1977 is restored.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //