J.S. Bedi, J.
1. This is a recommendation made by Shri D.R. Dhamija, Additional Sessions Judge, Delhi, dated the 17th February, 1964, made in a revision filed in his Court by Messrs. Haryana Finance Private, Limited, Roshan Ara Road, Delhi (hereinafter referred to as the complainant company) against Messrs. Jaswant Singh Sethi and Company, Bombay Agra Road, Agra, and others.
2. The facts giving rise to this revision are as under :--
3. One Inder Singh, Secretary of the complainant company, lodged First Information Report No. 146, on the 21st February, 1963, under Sections 420 and 406/120B of the Indian Penal Code at Police Station, Sabzi Mandi Delhi, against Krishan Lal Jaggi and Trilok Chand Jain, alleging that the complainant company was owner of Tata Mercedes Benz Motor truck 1961 Model, bearing engine No. 312-915-160-5214 and chassis No. 312-056-160-7207, registered at No. APJ-984, and had been deprived of the same through cheating committed by Shri Jaggi and the other. While investigation of this case was going on, an application was made on behalf of the complainant company in the Court of the Additional District Magistrate (II) Delhi, to the effect that enquires made by it showed that the truck in question was in possession of Messrs. Jaswant Singh Sethi and Company, 125, Pensioner Road. Agra Cantonment.
It was requested that a search warrant for recovery and production of the vehicle be issued. The Additional District Magistrate issued a search warrant under Section 96 of the Code of the Criminal Procedure, as desired, on the 20th July, 1963. This search warrant however, could not be executed, and a fresh one was ordered to be issued on the 6th August, 1963. Meanwhile, Messrs. Jaswant Singh Sethi and Company had obtained an order of the City Magistrate, Agra, dated the 17th May, 1965, in pursuance of which this truck (at that time bearing No. UPA 7458) had been allowed to remain with them on superdari on the condition that it should be produced before any Magistrate in Delhi or otherwise whenever required. However, in execution of the search warrant dated the 7th August, 1963, issued by the Additional District Magistrate, Delhi duly endorsed by the Additional District Magistrate (Judicial), Agra, the truck in question (No. UPA 7458) was seized by the Station Officer, Sadar Bazar, Agra.
In the meantime, record of the proceedings, initially started in the Court of the Additional District Magistrate (II), Delhi, was transferred to the Court of Shri S.C. Pandey, Additional District Magistrate, Delhi, who issued an order dated the 27th August 1963, directing the Station House Officer, Police Station, Sabzimandi, Delhi to bring the truck in possession of Aera Police to Delhi. This order was produced before the Additional District Magistrate (Judicial) Agra, for execution. Before this Court Messrs. Jaswant Singh Sethi and Company also made an application contending that the truck had been released and given to them on superdari by the City Magistrate, Agra, vide his order dated the 7th May, 1963. Consequently the Additional District Magistrate, vide his order dated the 29th August, 1963, rejected the application of Messrs. Jaswant Singh Sethi and Company for release of the truck, and Station Officer, Sadar Bazar, Agra, was directed to hand over the truck to the Station House Officer. Sabzimandi, Delhi, for production before the Court concerned at Delhi.
4. Both the parties were heard by the Additional District Magistrate, Delhi, and they were asked to produce documents in support of their respective claims for superdari of the truck. Shri S.C. Pandey, vide his order dated the 9th October, 1963, directed that the truck in question should be returned to Messrs. Jaswant Singh Sethi and Company, from whose possession it had been seized by the police. The opposite Party, namely, the complainant company filed a revision in the Court of Sessions, which came up before Shri D.R. Dhamija, Additional Sessions Judge, Delhi, who after hearing the parties, set aside the order passed by the Additional District Magistrate and recommended to this. Court that the truck in question be handed over to the complainant company, vide his recommendations dated the 17th Feburuary, 1964.
5. The details of this case are given in the recommendations made by the Additional Sessions Judge, Delhi, dated the 17th February, 1964, which need not be reproduced and which should be read as part of the judgment.
6. This case was argued at considerable length, and I am of the opinion that the recommendations made by the Additional Sessions Judge in this case are to be accepted. A number of rulings were cited before me by both the parties, which were also cited before the Additional Sessions Judge and discussed by him. The most important point in this revision is as to who should be considered the person entitled to possession of such a property as given in Section 523 of the Code of Criminal Procedure. There is always a presumption that a person actually in possession of a property is the owner, unless there are some facts indicating the position otherwise. But what is the proper order to be passed under this section depends upon the facts of each particular case. For instance, where a property was taken by an accused by violence, a Magistrate should, order restoration of status quo. It should be made over not to the accused person, from whom it was seized, but to the accused person entitled to its possession, where the accused asserts that the property does not belong to him, he is not entitled to its possession, and the Magistrate should not pass an order returning the same to the accused. Duty of the Magistrate, therefore, under Section 523 of the Code is to make an enquiry as to the person entitled to possess the property, and order the same to be given to him.
7. In the present case I find that the truck in question was purchased by the complainant company for Rs. 32,700/- from Messrs. Madhuri Motors, Hyderabad. It is also clear that the same was taken on hire purchase system by Krishan Lal Jaggi and his co-accused Tarlok Chand Jaggi. There is also an indication that the number of this truck was changed a few times, and, ultimately, it was sold to Messrs. Jaswant Singh Sethi and Company. Under the circumstances, it is obvious that the person, who is better entitled to possession of such a truck, is an ostensible owner, that is, the complainant company. If intention of the legislature was to deliver such a property to the person from whom it was recovered, then the word 'entitled' in Section 523 of the Code of Criminal Procedure was unnecessary and the legislature could have laid down that such a property should be delivered only to the person from whose possession it was taken. As such, while determining the question as to who is the person entitled to possession of the property, it is for the Court to see from some other circumstances also, and not from only one circumstance as to from whose possession it was taken by the police. In this case, the learned Additional Sessions Judge was correct in saying that if Messrs. Jaswant Singh Sethi and Company have any right to possess this truck they can be given compensation by a Civil Court if any suit is filed.
8. For the reasons given above, I accept the recommendations of the learned Sessions Judge, Delhi, dated the 17th February, 1964, and set aside the order of Shri S.C. Pandey, Additional District Magistrate Delhi. The truck shall be handed over to the complainant Company (Messrs. Haryana Finance, Private, Limited, Delhi) after obtaining from them adequate security for production of the truck as and when required by the trial Court.