HAD RAM TEWARI Vs. RAM TEWARI

JUDGEMENT

(1.) Upon complaint filed in the court of the Chief Judicial Magistrate, Basti by the opposite party No. 1 against the applicants for offences under sections 384, 406 and 420 Penal Code on 9th January, 1984, on May 1, 1984, the Chief Judicial Magistrate upon an application made from the side of the opposite party No. 1 directed that the Jeep in question No. UNE 1346 shall remain in the custody of the applicants and in view thereof it was not required to direct them to produce the same in court. This, however, was in the, nature of interim direction given while keeping the application made from the side of the complainant pending still. Against this order there was a revision filed by the opposite party. To this there was objection raised from the side of the applicants inter al/a to the effect that the revision did not lie since the order made was interlocutory. The revisional court seems to agree with this view but then it also observed that as the custody of the Jeep had been allowed to continue with the applicants without their being required to furnish security etc. it would be appropriate that the applicants be asked to furnish security in sum of Rs. 50,000/- in order that the vehicle may remain in their custody. The contention for the applicants is that in terms of this order passed in revision on June 28, 1984 they have furnished the required security. Subsequent to this it appears, the trial court took up for consideration the application for the opposite party No. 1 for the custody of the vehicle being made over to him. The application was earlier rejected on 7th February, 1985 but subsequently by the impugned order passed on 29th March, 1985, the lower criminal court IV, Basti has directed that the vehicle in question be placed in the custody of the police. Aggrieved against this the applicants have approached this Court under section 482 of the Code of Criminal Procedure.

(2.) Learned counsel for the applicants contended in the first place that keeping in view the revisional order dated June 28. 1984, it was not open to the trial court to have directed the vehicle to be placed in the custody of the police. This contention may not be sustained having regard to the fact that the order against which the revision had been filed was only interim in nature. A perusal of that order dated May 1, 1984, reveals that the Magistrate had kept the application made for the opposite party to release the vehicle in his favour, pending and had directed only as an interim measure that the vehicle may continue in the custody of the applicants and hence the production thereof in court was not required. It is against this interim order that the opposite party had gone in revision. The revisional court was of opinion that the revision did not lie since the order made was interlocutory still in order to safe guard the interest of the parties it was provided further that the custody of the vehicle may remain with the applicants provided they furnish the aforementioned security. It is true that this order passed in revision has attained finality since there was no challenge made from the side of the opposite party. All the same since there was only in the matter of interim custody of the vehicle while the application of the opposite party for the release of the vehicle in his favour had not been finally disposed of, it may not be claimed legitimately that this revisional order disposed of the question of the release of the vehicle and hence it did not lie within the jurisdiction of the Magistrate to consider the application on merit and decide the same.

(3.) The other objection raised from the side of the applicants is that on merit, there was little jurisdiction for the trial court to have directed the vehicle to be placed in the custody of the police. In this I find substance. The applicants have been as mentioned above, required to furnish adequate security. This may be availed against the damage etc. caused, if any, to the vehicle due to wear and tear or the loss suffered in this case by the opposite party and in case that were to be made out ultimately. The applicants had been in possession of the vehicle. Prima facie, the vehicle stood registered in their names at the relevant time proceeding making of the complaint. From the side of the opposite party it was averred no doubt that signatures have been obtained by the applicant on blank paper but all that is a matter to be gone into in detail, when the case itself is tried. Prima facie the possession over the vehicle at the relevant time was the applicants who were also the registered owners thereof. This together with the fact that they have been required to furnish adequate security and also since the trial itself is scheduled to take place early the date fixed being 4th January, 1986 and evidence in part having been recorded already, there can be little justification for changing over the custody of the vehicle at this stage and directing the same to remain with the police instead of being run by the applicants subject to the terms and conditions of the security furnished already.