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Jashwantsinh Punjabhai Parmar Vs. Dolatsinh Somabhai Chauhan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1980)2GLR281
AppellantJashwantsinh Punjabhai Parmar
RespondentDolatsinh Somabhai Chauhan and ors.
Cases ReferredNandirom v. State of Gujarat.
Excerpt:
- - on 18-7-1979 an entry was made in the record of the regional transport office in the name of arvindbhai and, therefore, the vehicle was registered in the name of arvindbhai and, therefore, the learned sessions judge came to the conclusion that the possession juridically as well as actually was of arvindbhai (respondent no. 2 arvindbhai on 17-7-1979 and he bad received a particular amount and the tractor in question was banded-over to respondent no. shah that on fact it can well be said that till 31-7-1979 the tractor in question remained in the police station and respondent no. i do not want to enter into that dispute mainly because from the record as it stands to-day, the petitioner had clearly let go his own right on the tractor by accepting the compromise on 11-7-1979......v.v. bedarkar, j.1. this petition has been filed by the petitioner under article 227 of the constitution of india with a request to set aside the judgment and order dated 23-6-1980, passed by the learned sessions judge, kaira in criminal revision application no. 13 of 1980 and 22 of 1980, by which he set aside the order of the learned judicial magistrate, first class, umreth, dated 10-1-1980 in criminal miscellaneous application no. 20 of 1979. by that order, the learned magistrate had ordered that a tractor, bearing no. g.t.m. 6463, involved in the dispute between the parties be handed-over to the present petitioner.2. in order to appreciate the dispute, it will be worthwhile to refer to the facts. on 18-7-1979 the petitioner lodged a complaint in the court of the learned judicial.....
Judgment:

V.V. Bedarkar, J.

1. This petition has been filed by the petitioner under Article 227 of the Constitution of India with a request to set aside the judgment and order dated 23-6-1980, passed by the learned Sessions Judge, Kaira in Criminal Revision Application no. 13 of 1980 and 22 of 1980, by which he set aside the order of the learned Judicial Magistrate, First Class, Umreth, dated 10-1-1980 in Criminal Miscellaneous Application no. 20 of 1979. By that order, the learned Magistrate had ordered that a tractor, bearing no. G.T.M. 6463, involved in the dispute between the parties be handed-over to the present petitioner.

2. In order to appreciate the dispute, it will be worthwhile to refer to the facts. On 18-7-1979 the petitioner lodged a complaint in the Court of the learned Judicial Magistrate, First Class, Umreth against the present respondent no. 1 for the offence punishable under Section 420 of the Indian Penal Code, on the allegation that the petitioner was cheated by respondent no. 1 Dolatsinh Somabhai Chauhan so far as the transaction of the tractor was concerned. It should be noted that respondent no. 1 had agreed to sell the tractor to the petitioner, and that tractor was hypothecated by the respondent no. 1 to the State Bank of India. It was agreed between the parties, i.e. the petitioner and respondent no. 1 that the tractor in question was to be sold to the petitioner for Rs. 22,551/-and accordingly, it is the allegation, that the petitioner paid Rs. 10, 000/-as earnest money and then deposited Rs. 14, 500/-in the Bank. But ultimately respondent no. 1 decided to sell the said tractor to one Patel Arvindbhai Ishwarbhai of Dholka (present respondent no. 2) and, therefore, a criminal complaint was filed by the petitioner.

3. The learned Magistrate, before whom the complaint was filed, instead of issuing the process against respondent no. 1, registered the complaint as Criminal Miscellaneous Application no. 60 of 1979, and sent the same for investigation to the Police Sub-Inspector, Umreth, under Section 15 (3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). The Investigating Officer registered the same as Crime no. 20 of 1979, and seized the tractor in question On 31-7-1979. On 1-8-1979, one Vajesinh Mohansinh on behalf of the petitioner filed an application, Ex. 3, for the custody of the tractor to be handed-over to the petitioner. In view of this, the learned Magistrate directed the P.S. I, to submit his report. On the same day respondent no. 2 filed application, Ex. 4, and requested the Court to hand-over the tractor in question to him. It was his case that Dolatsinh, respondent no. 1, had sold that tractor to him on 1771979 for Rs. 23, 500/-, and that the (respondent no. 2) got the said tractor transferred in his name in the records of the Regional Transport Authority and, therefore, the ownership rights are transferred in his favour. Then by Ex. 12, on 17-7-1979 respondent no. 1 moved the Court to hand-over the tractor to him as he was the rightful owner. The learned Magistrate, after hearing the parties, ordered to hand-over the possession of the tractor in question to the petitioner by taking a security of Rs. 10, 000/-from him with a direction to produce the tractor whenever required by the Court. Apparently, this is an order passed by the learned Magistrate under Section 451 of the Code.

4. Being aggrieved by the said order, respondents nos. 1 and 2 both filed Criminal Revision Applications nos. 22 of 1980 and 13 of 1980 respectively before the learned Sessions Judge, Kaira and Nadiad. After hearing the parties, the learned Sessions Judge set aside the order of the learned Magistrate by allowing revision application no. 13 of 1980 filed by respondent no. 2 Arvindbhai and ordered that the tractor in question be banded-over to him on his furnishing security to the satisfaction of the learned Magistrate. Revision Application no. 22 of 1980 filed by respondent no. 1 Dolatsinh was dismissed.

5. Being aggrieved by the said order of the learned Sessions Judge, original complainant Jashwantsinh Punjabhai Parmar, in whose favour the learned Magistrate passed the order, has come by way of this writ petition under Article 227 of the Constitution of India.

6. Mr. M.C. Shah, learned Advocate for the petitioner mainly contended that firstly the learned Sessions Judge erred in exercising the revisional jurisdiction under Section 397 of the Code, because according to Mr. M.C. Shah, this order is purely an interlocutory order, and according to the provisions of Section 39 (2) of the Code such a revision cannot be entertained. Secondly, it is his submission that the learned Sessions Judge committed an error in ordering to hand-over the tractor in question to respondent no. 2 on the assumption that he was a person from whose custody the said tractor was taken into possession.

7. In order to appreciate the dispute between the parties, on facts, I shall take up the second ground first. It is the submission of Mr. Shah that in fact, before this complaint was filed, the petitioner had filed a complaint earlier and in that complaint the petitioner and respondent no. 1 allegedly arrived at a compromise on 9-7-1979. It should be noted that that case was initially numbered as Miscellaneous Criminal Application no. 1 of 1979, and after the said case was sent to the Police for investigation and after the charge-sheet was received from the Police, it was numbered as Criminal Case no. 738 of 1979. It was also a case filed by the petitioner against respondent no. 1 for cheating him. During the pendency of that complaint, a compromise was arrived at on 9-7-1979 as stated above, and an application seeking composition was submitted before the Court on 11-7-1979. A certified copy of that composition is produced in this proceeding at Mark 7/2. Therein it has been specifically observed, that by the agreement between the parties, the possession of the tractor is banded-over to Dolatsinh Somabhai (respondent no. 1) and that be has to retain the possession permanently. It is also mentioned that possession of the tractor was with Dolatsinh. This compromise was recorded by the learned Magistrate on 11-7-1979 in presence of the parties and both the parties accepted the compromise, i.e. the present petitioner also accepted the compromise. On the strength of that compromise and on the strength of the panchnama of the attachment of the tractor in question on 31-7-1979 at 11. 00 a. m., the learned Sessions Judge came to the conclusion that the possession of the tractor was taken from the custody of respondent no. 2 Arvindbhai. He also considered that much earlier than that, i.e. on 18-7-1979 an entry was made in the record of the Regional Transport Office in the name of Arvindbhai and, therefore, the vehicle was registered in the name of Arvindbhai and, therefore, the learned Sessions Judge came to the conclusion that the possession juridically as well as actually was of Arvindbhai (respondent no. 2) and, therefore, when the Court has to pass order for handing over the vehicle pending the trial, it should have been banded-over to the person from whose possession it was taken.

8. As the compromise Pursis in the previous case was against him, Mr. M.C. Shah very much disputed this position. It is his submission that in fact, the actual possession of the tractor was never given over to respondent no. 1. But, according to him after the police attached the tractor in view of the first complaint, it remained at the Police Station upto 31-7-1979 and it was only on that day that respondent no. 1 approached the police, passed a Pursis about the taking of the possession of the tractor and thereafter, it seems, he handed over the notional possession to respondent no. 2 and, therefore, in the panchnama the police showed as if it was attached by the Police from respondent no. 2. In order to support this argument of his, Mr. M.C. Shah drew my attention to Mark 7/2, a writing executed by respondent no. 1 in favour of respondent no. 2. Therein, it has been mentioned that respondent no. 1 Dolatsinh sold the tractor to respondent no. 2 Arvindbhai on 17-7-1979 and he bad received a particular amount and the tractor in question was banded-over to respondent no. 1 by the order of the Court by the Umreth Police, but respondent no. 1 could not take possession of that tractor and, therefore, he could not handover the possession of the said tractor to respondent no. 2. But it is specifically mentioned in Mark 7/2 that on that day, i.e. on 31-7-1979, Tuesday, he got the possession of that tractor from the Police Station and after having obtained that possession, of his own sweetwill he handed-over the possession of the tractor to respondent no. 2 Arvindbhai. It is, therefore, the submission of Mr. M.C. Shah that on fact it can well be said that till 31-7-1979 the tractor in question remained in the Police Station and respondent no. 1 book its possession only on that day and thereafter he notionally handed-over the possession to respondent no. 2 Arvindbhai. It is his submission that thereafter the Police prepared a panchnama showing as if the tractor was brought by Arvindbhai near the garden near the police Station and possession was taken from respondent no. 2. But according to Mr. M.C. Shah all these acts are sham and in fact, in order to defeat the right of the petitioner, all these sham transactions are entered into by formal writings without actually transferring the possession.

9. The argument of Mr. Shah seems to be very attractive so far as the actual possession is concerned. But one thing cannot be ignored that the petitioner of his own volition entered into the compromise with respondent no. 1 Dolatsinh and agreed that the possession of the tractor remained with respondent no. 1 and it was to remain with him permanently. This compromise was entered into on 9-7-1979 and recorded by the learned Magistrate on 11-7-1979. Immediately thereafter, within one week, i.e. on 18-7-1979 the petitioner filed this complaint alleging that he was cheated. It really requires investigation whether the allegation of the petitioner that he was cheated even in spite of his having entered into a compromise before the Court on 11-7-1979 about the possession of the tractor with respondent no. 1 can be justified. But on this assumed allegation he filed a complaint and got an order from the learned Magistrate in his favour to take the possession of the tractor in question. The persuasive argument of Mr. M.C. Shah that actual possession of the said tractor was not at all with respondent no. 1 may be accepted for the time being. But so far as juridical possession was concerned, it was certainly of respondent no. 1 on the day on which the Court passed an order on the compromise Pursis. One thing remained patent that till then, i.e. till the tractor was seized by the Police on 31-7-1979 the petitioner was not at all in possession. By the compromise recorded on 11-7-1979 the petitioner relinquished any semblance of his right on the said tractor, either juridically or factually by saying that the possession was with respondent no. 1 and will remain permanently with him. Therefore, here is a person who has no juridical or factual possession. Still, however, he claims that the tractor in question should be given to him only because the so-called taking of possession of the tractor from respondent no. 2 was really a notional action, because respondent no. 2 never obtained actual possession of the said tractor. But in law, possession of respondent no. 2 cannot be disputed.

10. It was also argued with all vehemence at his command by Mr. M.C. Shah that it is wellnigh impossible to consider that respondent no. 2, a person staying at Dholka would come down to Umreth and purchase the tractor without testing it whether it is worthy of road or not and, therefore, the entire transaction between respondents nos. 1 and 2 is a sham transaction just to defeat the right of the petitioner. I do not want to enter into that dispute mainly because from the record as it stands to-day, the petitioner had clearly let go his own right on the tractor by accepting the compromise on 11-7-1979. Thereafter, it remained with respondent no. 1, who says that he has transferred it to respondent no. 2 and, therefore, the fact remains that the tractor was transferred to respondent no. 2, and with the R.T.O. it was also entered in the name of respondent no. 2, and as the record shows, it was also insured in the name of respondent no. 2. So, for all practical purposes, respondent no. 2 was the owner of the tractor in law, and when the application was filed for possession, he was the owner and the police as per the record and papers prepared by the Police, took possession of the tractor from respondent no. 2. So, on factual aspects, the order of the learned Sessions Judge is quite justified. It requires to be appreciated that the learned Magistrate who had earlier passed the order in favour of the petitioner, does not seem to have considered the impact of the compromise entered by the petitioner with respondent no. 1 on 11-7-1979. Therefore, the learned Magistrate has missed one important aspect which the learned Sessions Judge very elaborately considered in para 9 of his judgment.

11. The second limb of argument of Mr. M.C. Shah is about the illegality committed by the learned Sessions Judge in revising the order. It is the submission of Mr. Shah that this order is purely interlocutory and the learned Sessions Judge should not have interfered into it. A very laborious argument was advanced before me by Mr. Shah trying to distinguish the important sections of Chapter XXXIV of the Code pertaining to 'Disposal of Property'. It was submitted before me that Section 451 of the Code pertains to order for custody and disposal of property pending trial in certain cases. It is the submission that when a final order is to be passed, that order is to be passed under Section 452 of the Code which pertains to order for disposal of property at conclusion of trial. It is, therefore, the submission that under Section 451 of the Code, any order passed by a Criminal Court would be an order pending the inquiry or trial. It is, therefore, the submission that this order can well be said to be an order of interlocutory nature. It is of course a common ground that the order passed by the learned Magistrate handing over the possession of the tractor in question to the petitioner was certainly an order under Section 451 of the Code and not under Section 452 of the Code.

12. The question to be considered is whether even handing over of a valuable and useful article, like a tractor, pending the trial can be said to be a purely interlocutory order? It is to be noted that in a criminal case various types of muddamal or articles are attached, which require disposal prior to the conclusion of the trial. Some articles may be such as would remain in the same condition, which, on the conclusion of the trial, can be produced in the same condition, and if such articles are handed-over pending the trial to anybody no serious prejudice can be said to be caused so as to affect the proprietary right. But when an article, like a motor vehicle or a tractor, is handed-over to one party, about which a dispute is raised by the other party, and if one party has some inkling that ultimately that vehicle may not remain with him, can it be said that the party will take care of the proper condition of the vehicle or may use it in any way so that ultimately the value and use of that vehicle may be deteriorated or diminished? Secondly, when an article like a motor vehicle is to be handed-over to a person who apparently does not seem to be rightfully entitled to it, would deprive the rightful person its use and earning from it ultimately affecting the right of subsistence or income i.e. economic benefit from the use of that particular article. A vehicle is not an article which has to remain idle and to remain in the same condition. So when handing-over of possession of that vehicle even under Section 451 of the Code is to be considered, it is to be considered in such a way that substantial justice is meted out. The order should not be capricious so as to deprive the rightful claimant of that property even for a period of the conduct of the trial. One also cannot say how long such a trial will proceed right upto the last stage i.e. upto the stage of appeal or revision. So, it is very difficult to accept the contention that such an order under Section 451 of the Code can be said to be so interlocutory order as not to be interfered with in a revision.

13. While considering the implications of the words 'interlocutory order', the Supreme Court has in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 , given anxious thought in great details. For our purposes, the relevant observations are made in para 10. Therein it has been observed:

As pointed out in Amar Nath's case : 1977CriLJ1891 , the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing Sub-section (2) in Section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code.

If these observations are appreciated, it cannot be gainsaid that under the Code of 1898 an order even temporarily handing over a muddamal article to a party was revisable by the Court. The Supreme Court considered that such powers have been kept intact except in purely interlocutory orders. As considered above, an order regarding handing-over of an article, like a tractor, pending the trial, cannot be said to be a purely interlocutory order and, therefore, the bar put by Section 397(2) of the Code would not be extended to such an order. In para 12, the Supreme Court has considered the meaning of the expression 'interlocutory order' and came to the conclusion that it cannot always be a converse of the term 'final order', though ordinarily and generally it can be so stated.

14. In Halsbury's Laws of England, at page 742, in para 1606, it has been stated as follows:

a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required.

Further, in para 1607. it is stated:

In general a judgment or order which determines the principal matter in question is termed 'final'.

In para 1608, at pages 744 and 745, the words are as follows:

An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure or (2) is made after judgment, and merely directs bow the declarations of right already given in the final judgment are to be worked out, is termed 'interlocutory'. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.

If this is appreciated as was appreciated by the Supreme Court, then it cannot be said that the impugned order is purely an interlocutory order as can be said to be merely a matter of procedure. After having considered the meaning of 'interlocutory order' as found in Halsbury's Laws of England, as stated above, the Supreme Court in para 13 considered the judgment in S. Kuppuswami Rao v. The King , and thereafter proceeded to consider the interpretation of 'interlocutory order' observing:.. In our opinion if this strict test were to be applied in interpreting the words 'interlocutory order' occurring in Section 397(2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one.

It was further observed by the Supreme Court:

But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397(1). On such a strict interpretation, only those orders would be revisable which arc orders passed on the final determination of the action but are not appealable under Chapter XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code.

Going further, in the same para, the Supreme Court considered:

On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression 'interlocutory order' as invariably being converse of the words 'final order.' There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (supra), but yet it may not be an interlocutory order-pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in Sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purpose of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two.

It is, therefore, very clear that when the order is passed at an intermediate stage, pertaining to the procedural aspect, like calling for a witness, issuing summons, accepting any document on record, etc., it can be said that it is in furtherance of procedure and conduct of the case and any order passed pertaining to those matters may be an interlocutory order. But when an order like the present one is passed pertaining to the mu-ddamal, sealing the fate of the parties, so far as that article is concerned, during the pendency of the application without anything in furtherance of the procedural aspect, then it cannot be said to be an interlocutory order.

15. In my above observations, I am fortified by an unreported decision of Gauhati High Court (Agartala Bench) in Radha Prasad Goala v. Manir Mia 1980 Criminal Law Journal, N.O.C. 6 wherein it has been observed:

An order rendered under Section 451 cannot be said to be-an interlocutory order as contemplated under Section 397(3). Such an order is final between the contesting parties until final disposal of the trial and, hence, is revisable.

I fully concur with this opinion of the Gauhati High Court and, therefore, the submission made by Mr. M.C. Shah for the petitioner that the learned Sessions Jude committed an error in revising the order, which was an interlocutory order, has no basis.

16. Even if it is considered for the sake of argument that this order could not have been revised by the learned Sessions Judge, can the action of the learned Sessions Judge be said to be so palpably unjust as to be interfered with by this Court in its special jurisdiction under Article 227 of the Constitution of India? In Barot Jagannath Maganlal v. Parshottamdas Nathubhai Brahmbhatt, 8 Gujarat Law Reporter 9, this Court (P.N. Bhagwati, J. (as he then was)) considered the question of exercising the special jurisdiction under Article 227 of the Constitution of India. In para 9, it has been observed:

It is well-settled that the remedy under Article 227 of the Constitution is an extra-ordinary remedy which a party is not entitled to claim as a matter of right. It is a discretionary remedy which the Court grants where substantial justice requires its interposition. It is not granted merely for the purpose of correcting errors of law. As observed by the Supreme Court in D.N. Banerji v. P.H. Mukherjee 1953 SC.R. 302, 'unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for High Courts under Articles 226 and 227 of the Constitution to interfere.' It may be that the learned Assistant Judge committed an error of law in law in granting relief on the application even though the application did not disclose a cause of action, but that would not be sufficient to warrant interference by the Court in exercise of its extraordinary power under Article 227.

Same type of observations are made by D.A. Desai, J. (as he then was) in Dahyabhai Somabhai v. Ramaji Kesarji 12 Gujarat Law Reporter 809. In para 7, it has been observed that issue of a writ of certiorari is a matter of discretion of the Court. It is true that the power of superintendence conferred by Article 227 of the Constitution must be exercised by the High Court to see that all the subordinate Courts and Tribunals function within the specified limits of their jurisdiction. If any subordinate Court or Tribunal exercises jurisdiction not vested in it, the order or action of the Court or Tribunal can be corrected by issuance of an appropriate writ. But the question which was considered by this Court in the above referred to decisions was, whether in every case where it is brought to the notice of the High Court that a Tribunal had exceeded its jurisdiction, the Court as a matter of right should issue a writ at the instance of the party whose conduct has disentitled him to a relief by way of certiorari. Certiorari is not a writ of right but it is a discretionary relief that can be granted by the Court.

17. Under these circumstances, though I have held that the action of the learned Sessions Judge revising the order of the learned Magistrate was not barred by the provisions of Section 39 (2) of the Code; even if it is considered to be an interlocutory order and even if it can be said that it was an illegal order, patently the order has in fact corrected substantial injustice which would have been caused if the order of the learned Magistrate would have been maintained. So, when no palpable injustice is caused, merely because there might be an error of law, special jurisdiction of this Court under Article 227 of the Constitution of India cannot be invoked.

18. The question as to what the Courts should consider in such cases is settled by the decision of this Court in Nandirom v. State of Gujarat. 7 Gujarat Law Reporter 866, wherein it is observed:

When any property such as the motor vehicle is attached or seized by police, one has to consider the effect of the provision of the Motor Vehicles Act for finding out the true claimant before passing orders relating to such property during the pendency of the proceedings under Section 516-A of the Criminal Procedure Code. In view of the provisions contained in Sections 22, 24, 28 and 31 of the Motor Vehicles Act it would ordinarily be prudent to allow such a motor vehicle to remain in possession of such a person in whose name the certificate of registration stands.

19. It is not in dispute that at the time when the learned Magistrate passed the order, the certificate of registration and also the certificate of insurance stood in the name of respondent no. 2 Arvindbhai. Mr. M.C. Shah wanted to make a thin distinction to take advantage from this ruling by saying that this Court observed that 'ordinarily' the order should be passed in favour of a person in whose name the vehicle is registered. It is. therefore, his submission that there may be exceptional circumstances. But in my view, the present case does not call for any exceptional circumstance.

20. In view of the above discussion, I do not find any substance in his write petition and, therefore, the same is dismissed. Rule is discharged. Stay granted, is vacated.


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