1. Both these proceedings have arisen out of the same proceeding Cr. No. 182/82 on the file of the Metropolitan Magistrate (III Court) Bangalore City.
2. That proceeding before the Magistrate arose out of two rival claim petitions, one filed by Morzaria (Petitioner in Cr.R.P. No. 204/83 and first respondent in Cr.R.P. 882/82) and the other by M/s. Mangharam and Sons (petitioner in Cr.R.P. 882/82 and second respondent in the other petition) requesting the Court to entrust to him the interim custody of the motor vehicle in question' Truck (Goods Carrier) bearing No. MYA 9123.
3. By the impugned order the learned Magistrate has entrusted the vehicle to Morzaria on condition that he executes an indemnity bond in a sum of Rs. 2,00,000/- along with two local solvent sureties. Mangharam's petition is directed against that order made in favour of Morzaria and rejecting his claim. Morzaria's petition is against that part of the impugned order directing him to furnish a Bond to the extent referred to above with sureties on the ground that the security claimed is highly excessive.
3A. The Court below has dealt with these rival claims as the ones arising under S. 457, Criminal P.C., 1973. During the course of the arguments it was submitted that the police, who had seized the Truck during investigation into this case on the complaint of Morzaria, have since filed their final report (charge sheet) against an employee of Mangharam.
4. There is no dispute that Mangharam is the registered owner of this Truck. Morzaria is a reputed workshop owner who undertakes repairs and also body building of motor vehicles. The facts placed also show that the vehicle had been entrusted by Mangharam to Morzaria for repairs or body building.
5. According to Morzaria, to the work he had done re : the said Truck, Mangharam was liable to the extent of about Rs. 70,000/-; that he had told the registered owner to remove the Truck from his premises after satisfying his Bills; and that in spite of this, without clearing what was due to him, the accused had removed the Truck dishonestly and with a mala fide intention so as to deprive him of his lien over the Truck - re : repair charges and thus was liable to be proceeded against for an offence of theft. It is on such a complaint the police had proceeded with the investigation into the case and seized the Truck. No doubt, Mangharam denies the claim of Morzaria that he is liable to pay towards the cost of the repairs and body building work done to the Truck as is claimed by Morzaria. But the fact remains that the truck had been entrusted to Morzaria to attend to the aforesaid works and that the same was in his premises when it was taken away by persons said to be in the employment of Mangharam.
6. If the complainant is able to prove his claim that the vehicle had been removed from his custody with a dishonest intention and without his consent, that may amount to theft within the meaning of S. 378, IPC (illustration-J to S. 378 may be seen). However, into this aspect of the case we need not go at this stage. That is a matter for proof and the trial Court has to decide this question at the appropriate stage.
7. For our purpose it is sufficient to note, that this vehicle had been entrusted to Morzaria either for repairs or body building some time prior to this alleged occurrence; that he was thus in lawful possession of the same; and that his complaint relates to the removal of that truck from his possession. What stand the accused, said to be an employee under Mangharam, takes during the trial of the case is not known. It may be relevant to note that Mangharam's claim for interim custody of the vehicle is mainly based on the ground that he is a registered owner of the vehicle and therefore it must be entrusted to him.
8. Sections 451 and 457 of the Code somewhat overlap, though S. 457 is a general provision applicable to all cases where there is no enquiry or trial pending. The powers of the Courts under S. 451 are somewhat limited than in the case of S. 457. S. 451 mainly speaks of the proper custody of the property pending, conclusion of the enquiry or trial; whereas S. 457 says that the Magistrates 'may make such order as he thinks fit respecting disposal of property or delivery of such property to the person entitled to the possession thereof .......'.
9. As stated above, the learned Magistrate has dealt with these rival claims under S. 457 of the Code. Therefore, he has considered in some detail the grounds urged by the learned counsel appearing for the parties in support of their respective claims. However, in the circumstances of the case, even if S. 451 of the Code applies to the facts of the case now, it cannot be said that because this provision applies, the truck could not have been entrusted to either of the parties, but only arrangements should have been made for the proper custody thereof. In this connection I am respectfully in agreement with the following observations of Range Gowda, J., in Gurappa Hanamanthappa Katnalli v. Shivalinagappa Dundappa Tadke (1977 (2) Kant LJ 129) :
'Each case will be governed by its own facts and circumstances and it cannot be laid down as a broad proposition of law that in no case can the custody of the seized property be given either to the accused or to the complainant pending disposal of the main case. S. 451, Cr.P.C., contains no such restriction nor can one be read between the lines'.
10. Let us now examine the impugned order on merits. In a case like this, where a motor vehicle like a Truck is entrusted for extensive repairs or body building works involving huge costs, the parties concerned will have entered into, either impliedly or expressly, some agreement re : the work entrusted. After completion of the work the person who has entrusted the vehicle or some one authorised by him will take possession of the vehicle either after satisfying the Bills or with a promise to satisfy the claim, if there is mutual confidence between the parties. Under what circumstance this vehicle came to be taken out of the premises of Morzaria is not clear at this stage. However, Mangharam has not placed anything in writing or otherwise to prima facie show that the Truck had been taken out of the premises of Morzaria by his consent. He may be in a position to establish this fact at a later stage. However, I am examining the facts as they are now for the limited purpose of considering the rival claims of these parties for interim custody of the truck. That there is nothing now on record prima facie showing that the truck had been removed from Morzaria's premises with his consent is relevant at this stage.
11. In a case like this where the person from whom the property is seized also claims the custody of that property, two things are required to be considered. Normally the person from whom the property is seized is entitled to the custody of the same (with or without conditions) but he will not be entrusted with the property if there is prima facie material on record showing that he has committed some offence re : the same. In such an event, the claim, if any, of the other person, or the complainant as in this case, may be considered. While examining the rival claims the question as to who was in lawful possession firstly, at the time of seizure and secondly, eariler, that is to say, earlier to the event which gave cause to that seizure, is very important. If no prima facie case for any offence is made out against the person from whom the property is seized he can be presumed to have been in lawful possession of the same at the time of seizure and may be entrusted with it.
12. In the instant case prior to its removal the vehicle was in lawful possession of Morzaria. The person from whom the vehicle is seized has not placed as yet any material showing that it had been removed from Morzaria with his consent. And is stated above a final report is made to this Court against an employee of Mangharam and the case is pending. In this circumstance, at this stage it is Morzaria who is entitled to the possession of the truck in question.
13. The question is, only because Mangharam is the registered owner, should the vehicle have been entrusted to his custody as is argued by the learned counsel appearing for him.
14. In this connection, the learned counsel placed strong reliance on a decision of this Court in Kariyappa v. Srikantiah (1980 (1) Kant LJ 332) : (1980 Cri LJ 422). In Kariyappa two persons, one, in whose name the vehicle stood registered under the Motor Vehicles Act, and the other, who claimed to have purchased the said vehicle, had each claimed possession of the vehicle. The vehicle had been seized by the police on the complaint of the Motor Vehicles Inspector stating that the said vehicle had been detained by him for non-payment of tax. And while that vehicle was in his custody (under the custody of his watchman) it has been stolen away by some unknown person. After the seizure of the vehicle by the police, the Motor Vehicles Inspector does not appear to have laid his claim for interim custody of the same and the Court was left to decide the rival claims of only the aforesaid two parties. Besides this, the registered owner of the vehicle had emphatically denied of his having sold the same to the other party. In the light of the facts placed in that case, this Court was not impressed by the claim of the party who was claiming that he had purchased the vehicle under an agreement entered into with the registered owner. It is in 'these circumstances and in this background the learned Judge has observed in KARIYAPPA that 'the person, in whose favour the certificate of registration is issued or stands, ordinarily and obviously is the proper person for the interim custody of the vehicle seized and produced in the criminal Court.' The learned Judge, in the course of his judgment, has also referred to the statutory obligation of 'registration to use the motor vehicle on the road. The observation of the learned Judge that in such cases 'ordinarily and obviously it is the registered owner who is entitled to the interim custody of the vehicle' may be carefully noted. It is true that every motor vehicle before it is put to use requires to be registered under the Act. But, it is also relevant to note that there is no mandate that it is only the registered owner who should run the same and not others. A person in whose favour the registration' stands entrusting, under some agreement or on some understanding, the vehicle to some one else to run cannot be ruled out. Also, as in this case, the vehicle may be entrusted to repairs and body building. Thus, the possibility of some one other than the registered owner being in possession or custody of the vehicle with the consent of the registered owner or under an agreement entered into with him, cannot be ruled out. In fact in K. N. Vishwanatha Pillai v. K. M. Shanmugha Pillai, : 2SCR896 the Supreme Court observes that the Motor Vehicles Act does not bar benami transactions. The Court also observes that in the case of Motor Buses persons other than the owner of the vehicle may obtain permits to run that vehicle.
15. If we carefully examine the facts of this case in the light of what is stated above, it cannot be said that the learned Magistrate has committed an error in entrusting this vehicle to the interim custody of Morzaria.
16. Now, to consider the revision preferred by Morzaria. In the circumstances of the case, the indemnity bond sought for from him by the Court below appears to be somewhat excessive. Therefore that condition is modified requiring Morzaria to execute an indemnity bond in a sum of Rs. 1,00,000/- with one local solvent surety to the satisfaction of the Court below.
17. In the result, for the reasons stated above, Cr.R.P. No. 204/83 allowed to the extent stated above. Cr.R.P. 882/82 is hereby dismissed.
18. Order accordingly.