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T.A. KamaluddIn Vs. T.N. Abdul Salim and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1972CriLJ1160
AppellantT.A. Kamaluddin
RespondentT.N. Abdul Salim and anr.
Cases ReferredSitaram Sharma v. Union Territory of Manipur
Excerpt:
- .....things. (1) he may pass an order regarding the disposal of the property, or (b) deliver it to the person entitled to its possession subject to conditions, if any. imposed, or (c) in his absence pass order for its custody and production. as the rival claimants are before the court, in this case the magistrate is entitled to pass an order disposing the property in between the petitioner and the 1st respondent. the discretion given to the magistrate under this section must be judicially exercised. in the absence of anything to show the title to the property, it should be ordered to be delivered to the person in whose possession it has been at the time of seizure. the magistrate does not decide the question of title but merely decide the question of possession. the real owner can assert his.....
Judgment:
ORDER

E.K. Moidu, J.

1. The petitioner in both these revision petitions is the accused in Crime No. 708 of 1971 of the Cantonment Police Station. Trivandrum. As against the petitioner and another person the 1st respondent laid a complaint before the District Magistrate, Trivandrum. on 22-9-1971. alleging offences under Sections 406, 419. 420,465, 468 and 471 I. P.C. in respect of K. L V 1303. an Ambassador Sedan car. The allegation was that the 3rd respondent, S. Vasumathi. registered owner, sold the car on 19-12-1968 to one Remla Beevi. who was the mother-in-law of the petitioner and sister of the 1st respondent, that she, in her turn sold the same on 2-6-1969 to the 1st respondent and that Remla Beevi and the 1st respondent jointly entrusted the car to the petitioner on 15-7-1969 for his use with the direction by the 1st respondent that he should return the car to him whenever called upon to do so. But in spite of the demand it is alleged that the petitioner did not return the car. Hence the 1st respondent filed the complaint alleging offences under various counts.

2. The District Magistrate sent the complaint to the Sub Inspector of Police for investigation under Section 155(3) Cr. P.C. During the investigation, the car was taken into custody from a workshop where it was kept by the petitioner for some repairs. On production of the car before the learned Magistrate and on hearing both sides it was directed that the car should be entrusted with a respectable third party on his furnishing a bond. The learned Magistrate was purported to have disposed of the property under Section 516A Crl. P.C. It is against that order that the first of these revision petitions is filed. In pursuance of the order passed by the learned Magistrate a list of names with whom the car was to be entrusted was furnished by both sides. The learned Magistrate chose Shri. S. Raehavan, one among the persons of the list furnished by the 1st respondent and he was directed by the learned Magistrate to take the car into custody on furnishing a bond for Rs. 20. 000/-. It is against that order that the second of these revision petitions is filed.

3. Now the dispute is straightened as it is only between the petitioner on the one side and the 1st respondent on the other. Vasumathi the registered owner of the car. who is subsequently impleaded as the 3rd respondent in Crl. R. P. No. 428 of 1971. disclaimed her right to the car as she admitted that the car had already been sold to Remla Beevi who is the sister of the 1st respondent and the mother-in law of the petitioner. Therefore the en-trustment of the car to Vasumathi dose not arise for consideration. In this regard reference is made to a decision of this Court in Sahadevan v. Sudhakaran (1970 Ker L. T. 782). That was a case disposed of under Section 517 (1) Cr. P.C. 'any person claiming to be entitled to possession' which occurs in Section 517 (1) Cr. P.C. wag interpreted in respect of a motor vehicle that the person who is entitled to be in possession of it shall be the person in whose name the registration certificate of the motor vehicle stood. That decision does not apply to the facts of the present case. First of all that decision was rendered under the provisions of Section 517 (1) Cr. P.C. Secondly, there the dispute was between the registered holder of a vehicle on the one side and the third party on the other and as between them it would be justified to hold that the registered owner shall be the person who is entitled to be in possession of the property. But in this case there are two difficulties in following the principle laid down in the aforesaid decision. Firstly, the registered holder did not claim the property, as her own. She had stated categorically that the car had already been sold to one Remla Beevi. So Vasumathi was not competent to come forward to claim the car as the registered owner. The possession of the car. in spite of the transfer in violation of the Rules is not with Vasumathi. Section 517 (1) comes into operation only on conclusion of an enquiry or trial in a criminal Court. Section 516-A enables the courts to pass orders for the custody or disposal of property during an enquiry or trial. It is admitted that the police did not so far file a charge against the petitioner. The case is still under investigation. In that case, the proper Section to be applied for the disposal of the car is not Section 516-A Cr. P.C. but it is under Section 523 (1) Cr. P.C.

4. It is stated in the decision in In re. Siyaram Hanuman Prasad (1963) (2) Cri LJ 219 (Madh. Pra.) that Sections 516-A and 517 of the Criminal Procedure Code apply only when cases have actually come up before a criminal court for enquiry or trial. So if the property is seized by the police during the investigation under Section 550 Cr. P.C. and an enquiry or trial has not commenced before a criminal Court, the proper Section to apply would be Section 523 Cr. P.C. The same view is expressed in Sitaram Sharma v. Union Territory of Manipur (1963) 1 Cri LJ 691 (Manipur) where also it is stated that Section 516-A Cr. P.C. will come into operation only during the enquiry or trial in a case. In the instant case neither the enquiry nor trial has taken place. It is still in the stage of investigation. So the Magistrate should have disposed of the Property under Section 523 Cr. P.C.

5. Section 523 (1) Cr. P.C. deals with three classes of property which come into the custody of the police:

(1) property found on search or arrest of person under Section 51 Cr. P.C. (2) property alleged or suspected to have been stolen, and (3) property suspected to have been connected with any offence. In all these cases, the seizure shall be reported to the Magistrate. The Magistrate is entitled to do one of three things. (1) he may pass an order regarding the disposal of the property, or (b) deliver it to the person entitled to its possession subject to conditions, if any. imposed, or (c) in his absence pass order for its custody and production. As the rival claimants are before the Court, in this case the Magistrate is entitled to pass an order disposing the property in between the petitioner and the 1st respondent. The discretion given to the Magistrate under this Section must be judicially exercised. In the absence of anything to show the title to the property, it should be ordered to be delivered to the person in whose possession it has been at the time of seizure. The Magistrate does not decide the question of title but merely decide the question of possession. The real owner can assert his right in the civil Court, Sub-section (2) of Section 523 Cr. P.C. also does not come into the picture in the instant case.

6. So the Magistrate has to decide one way or the other as regards the person who is entitled to be in possession of the car as between the petitioner and the 1st respondent. There is no difficulty to decide as to the person to whom the car was sold by the registered owner. It is admitted that Remla Beevi. the mother-in-law of the petitioner, purchased the car. It is also admitted by the petitioner that the car was entrusted to the petitioner on 15-7-1969 and the petitioner has been in possession until it was seized by the police. Under these circumstances, it is required to be considered who is the person who is entitled to be in possession. The petitioner has produced a large number of documents before this Court. The 1st respondent is also at liberty to produce his documents in support of his contention. On receipt of these documents the learned Magistrate will hear both sides and pass a fresh order regarding the disposal of the property under the provisions of Section 523 (1) Cr. P.C. The orders in dispute are therefore set aside.

7. In the result, the orders passed by the learned Magistrate in respect of the disposal of the car are set aside and the District Magistrate will pass fresh order in the light of the obsevations made in this order as expeditiously as possible. The records come from the Court below will be returned forthwith.


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