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Mohd. Ismail Noor Mohammad Vs. Fehmada Nahid and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1966CriLJ1094
AppellantMohd. Ismail Noor Mohammad
RespondentFehmada Nahid and ors.
Cases ReferredManiam Hiria Gowder v. Naga Maistry
Excerpt:
.....onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - the question, therefore, arose as to who was best entitled to the possession of the bus under section 523, criminal p. where it is proved that the person from whose possession the property was seized came by it dishonestly, the magistrate may have to consider the question of title in order to determine the best right to possession. in my, opinion, a slightly different principle will have to be adopted in such cases to decide as to who is best entitled to possession of such property......in misc. criminal cases nos. 13, 14 and 15 of 1954 directing a seized bus to be returned to the permit holders, that is, mst. khatoonbi and her daughters, fehmada nahid, firoza khatoon and gariba sultana under section 523, criminal p.c.2. a permit for running a bus stands in the name of respondents 1 to 3 and 6. as the sixth respondent is a pardanashin woman and the other permit holders are all her daughters either major or minor, there was an arrangement between the sixth respondent purporting to act for herself and her minor daughters on the one hand and the present petitioner on the other hand about running of the bus service from the documents on record, it is clear that the petitioner has been actually managing the bus service on behalf of the permit holders. there are further.....
Judgment:
ORDER

P.K. Tare, J.

1. This revision under Section 439 of the Criminal P.C. is against the order, dated, 24.9.1984, passed by Shri S.R. Ghanekar, Additional Sessions Judge, Shajapur, in criminal revision No. 45 of 1964, upholding the order, dated 4.6.1964, passed by Shri N.L. Shrivastava, Additional District Magistrate, Shajapur in Misc. Criminal Cases Nos. 13, 14 and 15 of 1954 directing a seized bus to be returned to the permit holders, that is, Mst. Khatoonbi and her daughters, Fehmada Nahid, Firoza Khatoon and Gariba Sultana under Section 523, Criminal P.C.

2. A permit for running a bus stands in the name of respondents 1 to 3 and 6. As the sixth respondent is a pardanashin woman and the other permit holders are all her daughters either major or minor, there was an arrangement between the sixth respondent purporting to act for herself and her minor daughters on the one hand and the present petitioner on the other hand about running of the bus service From the documents on record, it is clear that the petitioner has been actually managing the bus service on behalf of the permit holders. There are further documents to show that the petitioner has spent money for acquisition of the bus which had been purchased from M/s Charatsingh and Co. It appears that the said company had to recover some amount towards the price of the bus. Permit had been issued in favour of Mst. Khatoonbi on 9.2.1962 for running a passenger bus on Bhopal-Shujalpur route.

3. On a report of a cognisable of offence alleged to have been committed, the bus was seized from the possession of the petitioner on 9.4.1984. Thereupon, the petitioner and the permit-holders, as also the financier M/s Charat Singh and Co. filed applications under Section 516A of the Criminal P.C., for Being delivered possession of the bus. No prosecution was ultimately launched against the petitioner in respect of an alleged cognizable offence. The question, therefore, arose as to who was best entitled to the possession of the bus under Section 523, Criminal P.C. The trial Magistrate and the learned Additional Sessions Judge upheld the claim of the permit holders to be restored to possession of the bus. Hence the present revision. At this stage, it might be noted that M/s Charat singh and Co. nave not filed any revision against the order of the criminal Court; but have filed a civil suit and have also secured an order from the Court of Sub Judge Class I, Delhi in civil suit No. 191 of 1984 for appointment of a receiver in connection with the disputed bus, It was from that point of view that the learned Additional Sessions Judge modified the order of the trial Magistrate that the order of returning the bus to the permit holders would be subject to compliance by them with the order of the Sub-Judge Class Delhi regarding appointment of a receiver.

4. The learned Counsel for the petitioner invited attention to cases under Section 517, Criminal P.C. and urged that the principle to be followed in a case covered by Section 523, Criminal P.C. will be the same. In this connection, attention was invited to the observations of a Division Bench consisting of Rankin C.J. and Costello J. in Brojendra Chandra Dev v. K.S. Sama AIR 1931 Cal 455. The learned Judges observed that when there was no case made out, the property ought to be handed over to one who had possession of it.

5. In Lakshmichand Rajmal v. Gopikisan Balmukund ILR 60 Bom 183 : AIR 1936 Bom 171, a Division Bench presided over by Beaumont C.J. and Macklin J. laid down that under Section 523, Criminal P.C. what the Magistrate has to consider is who is entitled to possession of the property, which has been seized by the police. Where it is proved that the person from whose possession the property was seized came by it dishonestly, the Magistrate may have to consider the question of title in order to determine the best right to possession. But where it appears that the police have seized property from a person who is not shown to have committed any offence in relation to that property, then the Magistrate can only hold that that person is entitled to possession of the property. If another claims the property, his remedy would be in a civil Court and the burden will be upon him to prove his title.

6. In Hukumchand Jain v. Ram Swaroop AIR 1952 Vin Pra 66, Krishnan, Judicial Commissioner (as he then was) laid down that although Section 517 was to enable the Court to restore the property to the party claiming possession, it would neither be possible nor proper for it to investigate the question of title. If no offence is proved to have been committed, the Court should restore the status quo ante. If an offence has been committed, then also the status quo is to be restored, but not the one before the seizure of the goods by the police, but the one before the commission of the offence in respect of the goods. That was the distinction drawn by the learned Judge as between cases where an offence may have been committed and cases where no offence may have been committed.

7. In Purshottam Das Banarsidas v. State : AIR1952All470 , Desai J. laid down that there is nothing in Section 517, Criminal P.C. to authorise a Magistrate to decide which party is the rightful owner of the property. His enquiry would be limited to finding which person is entitled to possession. Once he ascertains the person from whose possession the property was seized, he must hold him to be entitled to its possession unless, his possession was unlawful.

8. In Ganeshi Lal Ranchhoddas Mahajan v. Satya Narain : AIR1958MP39 , Samvatsar J. laid down that Section 523, Criminal P.C. would apply to properties seized by the Police of their own accord is distinct from property seized under a warrant issued by a Court and, therefore, the Section will include even cases where property was seized by the police during investigation. Therefore, where the property brought into the Court by the police in proceedings under Section 512, Criminal P.C. was seized by the police because it was suspected to be connected with the commission of the crime Section 523, Criminal P.C. was applicable to the case and the Court had jurisdiction to pass an order regarding the disposal of the property. On that aspect Samvatsar J. dissented from the view as expressed by Desai J. in the said Allahabad case.

9. Attention was also invited to the observations of their Lordships of the Supreme Court in Pushkar Singh v. State of Madhya Bharat : AIR1953SC508 where Their Lordships laid down that money found in possession of an accused which was alleged to have been stolen from the possession of the complainant was ultimately found to be belonging to the accused and not to the complainant. In the event of acquittal of the, accused the Court could not direct the money to be returned to the complainant, but was bound to return it to the accused. That would be the position where an accused is acquitted of an offence. However, in my opinion, a slight distinction exists between the provisions of Section 517 of the Criminal P.C. and the provisions of Section 523, Criminal P.C. The former Section is evidently about disposal o property regarding which an offence has been committed, while regarding Section 523, Criminal P.C. commission of an offence is not at all necessary. What is required is that the police must have seized the property! under Section 51, Criminal P.C. or the property must! be alleged or suspected to have been stolen of found, under circumstances which might create suspicion of the commission of an offence. When such property is produced before a Magistrate, he is empowered to order its disposal to the person entitled one possession thereof. Further, I may observe that a distinction will also have to be made between cases where property generally is involved, and other cases where property involving a licence or a permit for its possession or use is required under law. The present one is a case of this kind; in my, opinion, a slightly different principle will have to be adopted in such cases to decide as to who is best entitled to possession of such property.

10. The contention of the learned Counsel for the petitioner was that the burden to prove should not be changed by directing delivery of the property to the licence holder or the permit holder alone. It is urged that this would give a free scope for playing of a fraud on the pait of a licence holder or a permit holder to somehow obtain possession of the property or tolmake the other party approach a Civil Court. Of course, there may be such cases where a. different principle might have to be adopted. But I do not find tfiat the present one is a case of that kind.

11. It is true that the petitioner may not have committed any offence as was alleged by Mst. Khatoonbi; because ultimately, no prosecution was ever launched. The permit holder, Khatoonbi was running the bus service on the basis of an arrangement effected with the petitioner. But it appears that there were disputes regarding payment of money and payment of Khatoonbi's share as per the agreement between the parties. Probably, the price of the buss had not at least been partly paid to M/s Charatsingh and Company of Delhi. The bus service was running in the normal course under the permit granted to Mst. Khatoonbi and her daughters, and was in de facto management of the present petitioner. On account of these disputes regarding money matters, the petitioner thought it proper to take possession of the bus and take it to sehore. As such, the permit holder was deprived of possession of the bus on 5.4.1964. This act of the petitioner amounted to a dispossession of the permit holder and the bus was actually seized from the possession of the petitioner by the police on 9.4.1964 at Sehore where it had no business to be. As such, the action of the petitioner may not amount a criminal offence, but it was certainly an act of formally dispossessing the permit holder. For this eventuality, a different principle has to be adopted as indicated by the cases I propose to discuss presently.

12. Although the case of Nalluswami Reddi v. Nallammal AIR 1943 Mad 392, was a case under Section 517 of the Criminal P.C., Horwill J. laid down that a question of title as to property cannot be satisfactorily decided by a criminal Court; but where property prima facie is taken by violence by one person under the colour of a civil claim the criminal Court should ordinarily order the property so taken by violence to be returned to the person from whom it was taken.

13. The case of Emperor v. Haribandhu Patro AIR 1948 Pat 180, was a case which is on all fours With the present ease. In that case, one B. Kantaya had purchased a bus and had held the licence and the route permit and was actually plying the same. The accused who had contributed some portion of the money for purchasing the bus forcibly took away bus from the possession of B. Kantaya's driver. Therefore, the question arose as to who was entitled to possession of the bus. The bus had admittedly been seized from the possession of the accused. But Meredith J. laid down that the bus ought to be returned to the permit holder, particularly in view of the provisions of the Motor Vehicles Act, and also because B. Kantaya's possession was lawful, while the possession of the accused was based on violence.

14. The case of Maniam Hiria Gowder v. Naga Maistry : AIR1957Mad620 , although a civil case was decided by a Division Bench presided over by Rajamannar C.J. and Panchapakesa Ayyar J. holding that any partnership agreement in lorry business involving a transfer of the permit would not be recognized by the Court in view of the provisions of Section 59(1) of the Motor Vehicles Act, 1939. It was in that view that the learned Judges dismissed the claim of the alleged partner, who was not the permit holder.

15. The provisions of Sections 42, 59 and Section 123 of the Motor Vehicles Act, 1939 are very clear to show that a permit is not transferable and any person who is not a permit holder would be liable for an offence if he tries to ply a bus without such permit. Therefore, this will be a material consideration in eases of the present kind while deciding the question of return of the property under Section 523, Criminal P.C. Therefore, I am inclined to follow the course as indicated by Meredith J. in AIR 1948 Pat 180 (Supra) (1) and by a Division Bench of the Madras High Court in : AIR1957Mad620 . If the petitioner has any civil claim or has any claim to be in management of the affairs of Mst. Khatoonbi in the matter of running the bus service, it would be for him to enforce those rights through a Civil Court. He can Jin no case be considered to be the proper person so as to be entitled to return of the bus under Section 523 of the Criminal P.C.

16. From this point of view, there can be no doubt that the order passed by the Courts below calls for no interference by this Court, as a reversal of that order would involve an action contrary to the latter and spirit of Sections 42, 59 and 123 of the Motor Vehicles Act, 1939. In this connection, it is not necessary to consider as to what considerations may be applicable where the mere possession of an article such as a gun needs a licence, or other cases where the use of an article in a particular manner requires a permit or a licence. I would reserve the consideration of that question for some suitable occasion.

17. Consequently, this revision fails and is accordingly dismissed.


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