ALIYAR KUNJU Vs. SUBAIR KHAN

JUDGEMENT

(1.) Revision Petitioner in the Crl. R. P. is the accused in C. C. 266 of 1983 on the file of the Additional Judicial Magistrate of the First Class, Trivandrum. He is the respondent in Crl. M. C. 752 of 1983. The complainant in the case is the first respondent in the Crl. R. P. and the petitioner in the Crl. M. C. They will be referred to as accused and the complainant respectively in this order.

(2.) The complainant filed a private complaint before the Magistrate against the accused alleging that he is the owner of lorry bearing registration No. KER. 8232, that on 15-4-1983, the accused met him and negotiated the sale of the lorry, that the lorry was subject of a hire purchase agreement in regard to which an amount of Rs. 60,800/- was due, that the respondent agreed to purchase the lorry for a price of Rs. 1,25,000/- inclusive of the hire purchase dues and paid advance of Rs. 10,000/- and agreed to pay the balance of Rs. 54,200/- to the complainant in three months. It was further alleged that on 25-8-1983 at 8 p. m., accused met the complainant at his house and wanted to take the lorry out for the purpose of testing and accordingly the complainant allowed the accused to take away the lorry but the accused did not return the lorry and refused to return the same. An application was made for the issue of a search warrant and warrant was issued and the lorry was seized by the police from the custody of the accused. Thereupon, the accused filed Crl M. P. 2162 of 1983 for release of the lorry to him on bond, evidently under S.451 of the Code of Criminal Procedure. The application was opposed by the complainant on the basis that he, as the person in whose name the registration certificate stands, is entitled to custody and the accused who has no right with reference to the lorry, is not entitled to interim custody. The learned Magistrate passed an order directing release of the lorry to the accused on his executing a bond for Rs. one lakh with two solvent sureties in the like amount.

(3.) Challenging this order, the complainant filed Crl. R. P. No. 158 of 1983 in the Sessions Court, Trivandrum. It was contended before the Sessions Court that the order being interlocutory in nature, is not revisable in view of the bar under S.397(2) of the Code. The Sessions Court overruled this contention, went into the merits of the case and remanded the matter for fresh disposal in accordance with law. This order is challenged by the accused in Crl. R. P. 418 of 1983. Not being certain about the jurisdiction of the Sessions Court to interfere in revision with an order of the nature passed by the Magistrate, the complainant has filed, by way of abundant caution, the Crl. M. C, under S.482 of the Code to quash the order of the Magistrate. The Crl. R P. and the M. C. have been heard together.