S.N. Deedwania, J.
1. This revision, which is directed to be treated as a petition under Section 482, CrPG is against the order dated August 22, 1980 of learned Munsif and Judicial Magistrate, Bilara directing the interim custody of tractor No. BHR 8146 to complainant Parsamal.
2. Briefly stated the relevant facts are these. On 16.3.79. Parasmal lodged a report at police station, Bilara alleging that he had purchased tractor No. BHR 8146 in the month of September, 1977 from Jeevrajsingh and registration was duly transferred id his favour. On 30-6-77, Kailash Chandra accused took the tractor from him on hire and executed a rent-deed. Kailashchandra thereafter through his father Heeralal sold the tractor to Jassaram and thereby committed offence of criminal branch of trust punishable under Section 406, IPC During the course of investigation, the tractor was recovered from a 'bara'. After the investigation, now the police has submitted a final report. The case of Kailashchandra is that he purchased the tractor from Jeevrajsingh, and it was also duly registered in his name. Parasmal has some old debts outstanding against him and his father and, therefore, he forged certain documents including the alleged rent-deed and thereafter got the tractor registered in his name.
3. It may also be stated that during the investigation, complainant. Parasmal departed from the allegations made in the complaint and conceded that he did not purchase the tractor from Jeevrajsingh and took the stand that the tractor was sold to him by Kailashchandra and thereafter, he gave it back to him on hire. Parasmal struck to his stand that Kailashchandra has committed criminal breach of trust in respect of this tractor by selling it to Jassaram. During the investigation, it was further found that Kailashchandra had not sold or transferred the tractor to Jassaram.
4. I have heard learned counsel for the parties and learned Public Prosecutor for the State and perused the record of the case carefully.
5. It appears that the allegation regarding the purchase of the tractor by Parasmal from Jeevrajsingh was false From the final report, it was further established that this tractor was never sold or transferred to Jassaram by Kailashchandra or his father. No doubt, a rent-rate is in existence alleged to be executed by Kailashchandra in favour of Parasmal regarding this tractor, to farther appears that on the strength of a sale-letter dated September 27, 1977 alleged to be signed by Kailashchandra, the registration entry in the certificate of registration was transferred in the name of Parasmal.
6. Learned counsel for the petitioner sought to argue that the alleged sale letter dated September 27, 1977 and the rent-note are false documents.
7. On the other hand, learned counsel for the non-petitioner argued that at this stags, the trial court or this Court will not undertake an intricate enquiry to Bid out whether the alleged rent-note and sale-letter were false documents. I am inclined to agree with this view. However, from the first information report and on the admission of Parasmal, the following undisputed facts emerge:
1. That Kailashchandra purchased the tractor from Jeevrajsingh and the allegation made in this behalf by Parasmal in the first information report is false.
2. That the registration was transferred in the name of Parasmal on the strength of alleged sale letter from Kailashchandra.
The disputed question is whether the alleged sale letter and rent-note by Kailashchandra are false documents. For the purpose of this petition, I take it that Parasmal obtained this transfer of the tractor from Kailashchandra and thereafter hired it back to him though it appears unusual that a tractor would be given on hire for Rs. 600/- per month only and no rent whatsoever would be paid by Kailashchandra to Parasmal. From the final report, and the evidence collected during the investigation, it also appears that this tractor was not sold by Kailashchandra or his father to Jassaram. Parasmal had no evidence worth the name about this alleged transfer. Jassaram has denied that this tractor was sold to him. Prima facie, therefore, no offence of criminal breach of trust was committed by Kailashchandra in respect of this tractor. This conclusion is further strengthened by the final report filed in the case.
8. The necessary implication or the inference from these facts is that Kailashchandra was in lawful possession of the tractor as a hirer on the date the police recovered is from his possession. The question is, who is entitled to interim custody of this tractor. Before I take up this question, I may refer to some of the legal principles in this, regard.
(1) It is well established that no criminal proceeding? lie for a purely civil wrong. A crime may also be a tort, or (civil wrong) However, it is necessary to distinguish between a crime and purely a civil wrong or a tort. In theory, crime is essentially a wrong to the public or the society and remedy generally is prosecution be the State and punishable under the substantive law of crimes. Such prosecution may also be started at the instance of the injured' individual or on his complaint, but in the case of purely civil wrong or tort, the State has nothing to do with the enforcement of the remedy and it is left entirely to the injured-person, to seek his remedy by way of a civil action The necessary, corollary is that for purely a civil wrong or a tort under the substantive law or crimes, no action lies. The criminal courts are scant to remedy a criminal wrong or to punish for a penal liability.
(2) It is thefore, apparent that if no crime has been committed, a prosecution shall not lie under the substantive law of crimes and it is nothing but an abuse of the process of the court, Even the orders under Sections 451, 452 and 457, Cr.P.C. will be be without jurisdiction and in a limited sense: If, no crime has been committed, and complainant has moved a machinery of the criminal; courts for, a civil wrong on false allegations, no orders can be passed in his favour as he is abusing the process of the court.
(3) A registered owner is not necessarily by the real of a vehicle Endorsement of transfer of a vehicle in the registration records under the Motr Vehicles Act is not a condition precedent for an effective transfer. It was thus observed in the case of M/s Automobiles Transport (Raj.) Pvt. Ltd. and Anr. v. Dewalal and Ors. .
We need not reproduce the entire discussion which was undertaken by the learned Judge and it will be sufficient to state that the sale of a motor vehicle is not governed by Section 54 of the Transfer of Property Act but it being a moveable property was to be governed by the provisions of the Sale of Goods Act. The fallacy that the provisions of the Act require that the owner of a vehicle cannot use the vehicle unless it is registered under the Act or cannot carry passengers or goods in the vehicle unless a permit in that respect is obtained by the owner and which led to the conclusion that it is only the ostensible owner who is to be considered to be the owner of the motor vehicle irrespective of fact that the real ownership may be with somebody else, who pointed out in the Oriental Fire and General Insurance Co's case The provisions of the Act regarding registration and issue of permit have nothing to do with the ownership of the vehicle. They only provide for regulation of the use of the motor vehicles in public places and if the requirements of the Act were not fulfilled penalties were attracted. We are in respectful agreement with the views of the later decision of the Delhi High Court that the agreement of the transfer in the records of the, Registering Authority is not a condition precedent of the transfer nor does it deal with the legality or validity of the transfer which must be determined by other provisions of the law.
9. The ordinary rule is that the property should be returned to one who he entitled to its possession unless his possession was unlawful. A person from whose possession the property is recovered and if he has not committed any offence in respect thereof, in the parson who is entitled to its possession. A criminal court would not engage itself to decide question of title. Reference to the observations made in the following authorities establish this principle, which has been reiterated in the numerous other authorities cited at the bar before me:
(1) N. Madharam v. State of Kerala 1980 (1) SCJ 326:
An analysis of this provision would show that it refers to property or document; (a) which is produced before the Court; or (b) which is in the custody of the Court; or (c) regarding which any offence appears to have been committed; or (d) which has been used for the commission of any offence. Then, at the conclusion of the enquiry of trial, the disposal of any class of the property listed above, may be made by (i) destruction; (ii) confiscation; or (iii) delivery of any person entitled to the possession thereof.
The word 'may make such order as it thinks fit' in the section, vest the Court with a discretion to dispose of the property in any of the three modes specified in the section. But the exercise of such discretion is inherently a judicial function, The choice of the mode of manner of disposal is not to be made arbitrarily but judicially in accordance with sound principles founded on reason and justice, keeping in view the class and nature of the property and the material before it. One of such well recognized principles is that when after an inquiry or trial the accused is discharged or committed, the Court would normally restore the property of clause (a) or (b) to the person from whose custody it was taken. Departure from this salutary rule of practice is not to be lightly made, when there is no dispute or doubt--as in the instant case--that the property in question was seized from the custody of such accused and belonged to him.
(2) Dhana v. The State 1956 RLW 192:
The ordinary rule is that where an accused-person is acquitted of an offence in relation to such property and the property has been Recovered from the possession, the court should order such property to be returned to him. If the court thinks it proper to depart from this ordinary rule, it must give its reasons for doing so. Where the case of the accused was, that he had purchased the property recovered from some third person and that third person also came in evidence and supported the case of the accused, it could not possibly be said that such a case fell within the ambit of any exceptional cases under Section 17. It thus becomes a case where the title to the stolen property becomes a matter of contest between two rival parties and in such a case (sic), where the accused stands acquitted, it is not a sound exercise of judicial discretion to order the handing over the property recovered to the complainant instead of the accused.
(3) Purshottam Das Benarsidas v. State through Harchand Rai Natwerlal : AIR1952All478 :
A Magistrate is not a Civil Court and has no power to decide disputes about title. There is nothing in Section 523 to authorize a Magistrate to decide which party is the rightfal owner of the property. His enquiry is limited to finding which person is entitled to the 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.
The person from whose possession the property was seized and who is not found to have committed any offence such as would render his possession unlawful, is the person entitled to its possession.
It was vehemently contended by Mr. Pathak that it is the duty of the criminal court to wipe of the crime and to restore the rightful owner to possession leaving the innocent purchaser to his remedy in a civil court. That is not a rule of justice, equity and good conscience, the common law rule being quite the opposite. There is no justification for the criminal court's ignoring the accrual of a right in a third party, particularly when no body has been prosecuted and the third party has not acted dishonestly. The rule to be applied is that is laid down by Telong J. in case of Ratan Das, 17 Bom. 748, at p. 754, namely;
property taken under the authority of the law for a particular purpose should, on the fulfillment of that purpose, go back to the custody from whence it was taken.and adopted by Sir Arnold White C.J, in the case of Kuppammal. When no body is convicted or even prosecuted, there cannot arise any question of wiping off the effect of a crime. When the offender is convicted, the crime committed by him may be wiped off as contemplated by Section 519, Criminal P.C. But when the investigation does not result in conviction or even in prosecution, all that the police or the Court can say is that the person who was last in possession of the property is the person entitled to its possession,
The principle underlying this proposition appears to be that one can only he deprived of possession of a property by a due process of law. The notable exception is that the properly should not be returned to one who obtains its possession by some criminal act like theft or has committed criminal breach of trust or has committed any offence to render its possession unlawful.
10. There is some divergence of judicial opinion on the question whether Section 457, Cr. P.C. is applicable, when the case ends into a final report. However, the view of this Court is that in such circumstances provisions of Section 457, Cr. P.C. are attracted. It was thus held in Mohansing v. State 1964 R.L.W. 165.
Section 523. Criminal P.C. should be liberally constructed so as to be applicable to all cases where there has been no enquiry or trial and consequently, where the police submits a final negative report stating that no offence has been made out the Magistrate is competent to pass appropriate orders for the disposal of the property under Section 523, Criminal P.C. There is no adequate justification for limiting the language of Section 523, Criminal P.C. to the seizer under Section 551 and Section 550, Criminal P.C. particularly when Section 523, Criminal P.C. avoids to make reference to Section 550, Criminal P.C.
Even when it may be ascertainable that the property was recovered from the possession of certain person, still the jurisdiction of the Magistrate to direct an enquiry to ascertain the person entitled to possession cannot be barred
11. Some equities and consideration in favour of the registered owners are also relevant in cases of Motor Vehicles. The registration certificate is strong, presumptive evidence of true ownership and possession of a motor vehicle It is thus held in these following authorities:
(1) Deo Dutta Sharma v. Manoharlal and Ors. 1974 Cr. L.J. 115:
It is evident from these provisions that the certificate of registration is the primary, if not conclusive evidence, that the holder thereof is the owner of the motor vehicle specified therein. Equally axiomatic it is that a presumption of being in possession flows from the factum of rightful ownership. Therefore the holder of the certificate of registration is entitled to claim in his favour the strongest presumption that he is the rightful owner in physical possession (either actually or constructively) of the motor vehicle. Unless there is the clearest and well-nigh conclusive evidence to the contrary to rebut this presumption the registered owner of a of a motor vehicle ought not to be denied his right to custody and possession of the same.
(2) Nandiram v. State of Gujarat and Ors. 1967 Cr. L.J. 483
It follows from the provisions referred to hereabove that the registration certificate is an essential necessity before any such motor vehicle can be made use of and that any person in whose favour this certificate of registration is issued, obviously would be the owner thereof. In case of any transfer of ownership in respect of that motor vehicle, the procedure is contem plated under Section 31 of the Act and till any such transfer of ownership is entered in the certificate of registration. One has to take it that the person in whose favour such a certificate of registration is issued by the motor transport authorities is the owner and that way entitled to remain in possession thereof. Non-compliance of certain provisions of the Motor Vehicles Act some time makes the owner responsible. In these circumstances, it would be ordinarily prudent and in consonance with the provisions of the Motor Vehicles Act to allow such a motor vehicle to remain in possession of such a person in whose name the certificate of registration stands. Any other person can be taken to be a person at the most as making use of it on his behalf or if there is no consent on his part, as against his interest. In case of this charactor, possession by itself would not be a true criterion for the return of the case to a person from whom it has been seized or attached by the police in relation to a case against him. In my view, the person in whose name the motor vehicle stands with the registration authority, would be entitled to remain in custody thereof and not any other person, unless he is able to establish his superior title or claim over it.
(3) Smt. Mahamaya Devi v. Basant Kumar Lal and Ors. : AIR1968Cal554
Where a car is stolen from the Complainant who is shown to be the registered owner thereof having the blue-book, tax-token, insurance certificate and other relevant documents in proof of ownership and when neither the Complainant nor the accused is willing to stand the bill of expenses if the car he sent to a recognized garage for being kept till the disposal of case, the custody of to> car should be made over to the complainant and not to the accessed. This is because motor car is a subject with regard to which there are specific provisions in the statute enjoining certain obligations and any non performance thereto will bring the offender within the ambit of the penalties provided for, under the relevant Act and the Rules. Motor vehicles are not just ordinary 'cartels personal' and the owner thereof has not rights is veil as liabilities under the statute.
In Ramchand v. The State of Rajasthan and Ors. (S.B. Criminal Misc Petition No. 157 of 1978, decided by this Court on 11-9-1979) Agrawal, J. observed as follows:
In my opinion, therefore the custody of a motor vehicle should be normally given to the persons in whose name the certificate of registration stands or to the person who has been authorities by the registered owner to take charge of the vehicle. Thereby, however, be cases in which the court may find that it would not be in the interest of justice to give the custody of the motor vehicle to the person in whose name the certificate of registration stands. In such cases the Court may, in my view, pass an order directing that the motor vehicle may be left in the custody of the police or that it may be left in a garage.
I find no basis for the observations in the said authorities that if the vehicle is not proposed to be given to one in whose name, the certificate of registrating stands then the proper order would be that it might be left in the custody of the police or in the garage. I also find no justification for the following observations of Agrawal, J.
Thus from the aforesaid decisions of this Court also it appears that m so far as motor vehicles are concerned the custody has been given either to the person in whose name the certificate of registration stands or to his agent and if it is given to a third person a condition is imposed that before that person obtains the possession he must secure the registration of the vehicle in his favour.
These observations are purely obiter, which were not required to be made in the facts of the case before Agrawal. J. No doubt, this decision was on the basis of Nandi Ram's case (supra) and Mahamaya Devi's case (supra). However, the case of M/s. Automobiles Transport (Raj.) Pvt. Ltd. and Anr. v. Dewalal and Ors. (supra) was not brought to the notice of Agrawal, J. wherein it was held that the original owner was not necessarily the real owner of the Motor Vehicle because its sale was governed not by the Motor Vehicles Act but by the provision of the Sales of Goods Act. The provisions of the Motor Vehicles Act only covered its use in public place and if its requirements were not complied with certain penalties, were invited. The registration authority does not deal with the legality or validity of the transfer. It does not appear that a sale of the motor vehicle is invalid till its purchaser. Moreover, the observations of the Supreme Court made in N, Madhavan's case (supra) were also not brought to the notice of his Lordship. In the case of Ramchand (supra), it was not examined whether any offence has been committed in respect of the tractor with regard to the other aforesaid authorities. I respectfully beg to differ. There is no reason to lay down that the custody of a motor vehicle can only be given to its registered owner The provisions of the Motor Vehicles Act do not deal with the custody of a motor vehicle or the legality of its sale. Therefore, its provisions are of little relevance o decide the question of title, possession or custody in a civil or a criminal proceeding even orders under Section 451. 452 or 457; Cr. P.C. should be made according to the well settled principles though they be in respect of a motor vehicle. I may refer to the decision of this Court in Ridaram v. Hansraj and Ors. S.B. Cr, Misc. Petition No. 74 of 1977, decided on 29.3.1979). In this case, complainant Ridaram was the registered owner of the tractor. He filed complaint to the effect that he was forcibly deprived of possession of the tractor by Hansraj and Ors. It further appears that Hansraj took possession of the tractor on the basis of hire-purchase agreement dated December 30, 1975. In these facts Jain, J. thus held
As stated above, prime facie, the basis of the agreement dated 30-12-75, it is Hansraj who is entitled to the possession of the tractor and as such, in the circumstances, of the case, I consider it proper to pass an order for delivery of the tractor to Hansraj on his furnishing a personal bond and a surety bond. It would be open to the complainant to resort to any remedy available to him in law as to how the tractor may be dealt with by Hansraj or for recovery of possession of the tractor in a competent court of law.
The decision was arrived at on basis of a Supreme Court's case reported in Sardar Trilok Singh and Ors. v. Satya Deo Tripathi 1979 Cr. L.R. (SC) 65 wherein it was thus held
It was a very suitable case where the criminal proceedings ought to have been quashed by the High Court in exercise of its inherent power. The dispute raised by the respondent was purely of a civil nature even assuming the facts stated by him to be substantially correct. Money must have been advanced to him and his partner by the financier on the basis of some terms settled between the parties. Even assuming that the applicants either by themselves or in the company of some others went and seized the truck on 30-7-1973 from the house of the respondent they could and did claim to have done so in exercise of their bonafide right of seizing the truck on the respondent's failure to pay the third monthly installment in time. It was therefore, a bona fide civil dispute which led to the seizure of the truck.
Learned counsel for the petitioner heavily relied upon the case of B.S. Tookapa v. The State by Ripponpat Police (1977 Cr. L.J. 1950) wherein, it was thus observed
A perusal of Section 452 indicates that the Magistrate has the jurisdiction to make such order as he thinks fit for the disposal of the property produced before him or in his custody or regarding which any offence appears to have been committed. While making the order of disposal of such property, the Magistrate can deliver it to any person claiming to be entitled to the possession thereof or otherwise; meaning thereby that the property can be delivered even to a person not claiming to be entitled there, to provided the Magistrate is of the opinion that in the best interest of the property as well as of the parties involved the property need be delivered to him. That is so because the order of the Magistrate is only a tentative arrangement. The final title to property or right to be determined by the Civil Court or any other court of competent jurisdiction. Complicated questions of civil law are not required to be decided by the Magistrate. Before him, the simple question is, as to which of the party is best entitled to possession and after considering the right to possess claimed by either party, if the Magistrate decides in favour of one and against the other that should be the end of the matter so far as his court is concerned
12. I may say with respect that the said observations were made in the facts of the case. Each case would depend upon its own facts on various considerations as warranted by these facts. There can not be any inflexible rule that the vehicle should invariably be returned to its registered owner.
13. However, as stated earlier, if no offence has been committed in in respect of property then the setting of criminal machinery of law by the complainant is nothing but gross abuse of the process of the court. In such cases, the property is necessarily so be returned to one, who is entitled to its possession at the time of its recovery of the vehicle and who has not committed any offence in respect thereof to make its possession unlawful. This has been held by the Supreme Court in the case of N. Madhavan v. State of Kerala 1980 (1) S.C.J. 326. Conversely the courts will not help one who for the satisfaction or vindication of real or imaginary rights takes the law in his hands and obtains the possession of a property or a motor vehicle by some criminal act. I am further of the opinion that this principle has to be followed even in respect of a motor vehicle for the disposal of all applications under Section 451, 452 or 457, Cr. P.C. The fact of registration is only relevant for inquiry into the title and the consequent possession. As already found, Kailashchandra petitioner has not committed any offence in respect of the tractor to render its possession unlawful. He is, therefore, entitled to the custody thereof.
14. I, therefore, quash the impugned order dated August 22, 1980 and direct that the custody of the tractor be given to Kailashchandra petitioner on furnishing a personal bond in the sum of Rs. 50,000/- (Rupees fifty thousand only) and a custody bond in the like amount to the satisfaction of the Magistrate with a stipulation that he will produce the tractor before the court as and when required and on his failure to do so, the aforesaid sum shall be liable to be recovered from him or his surety or both. The petition is accepted accordingly.