HARISH CHANDRA Vs. STATE

JUDGEMENT

(1.) THIS is an application under Section 482 CrPC praying: that Truck No. UTY 4645 which has; been detained at P. S. Bidhuna in connection with a case under Sections 420/406 IPC, be released in favour of the petitioner. The learned Magistrate had passed an order dated 28-4-1977 to the effect that the case was under investigation and in view of the case law cite i, it was not proper at this stage to decide the question of disposal of property. At that time, there was a decision by Honourable Katju. J. in the case of Nannoo Mal v. Sher Mohammad Khan, 1976 AWC 251 to the effect that under Section 457 CrPC it was not possible to release the property during the course of investigation. 1 had differed from that view and had referred the matter to a larger Bench in the case of Abdul Razzak v. State of U. P., in case No. 1169 of 1977. I am informed that the Division Bench consisting of Honourable Malik, J. and Honourable Chaturvedi, J. has dictated the judgment on 8-2- 1978-since reported in 1978 AWC 225 = 1978 ACrR 140 upholding my view. I, therefore, heard the learned counsel for both the parties on merits. A counter affidavit has been filed on behalf of the State also in this case. In the counter-affidavit, it was stated that the metalic expert was to inspect the truck in the first week of February, 1978. I definitely ordered on 9-2-1978 that the report, if any, given by metalic expert shall be filed by today. No such report has been filed. Harish Chandra petitioner and Brahma Din Shukla opposite party both cLalmed to be the owners of the truck in dispute. Both have given different versions as to how it was taken away from the custody of one by the other. No doubt, it was ultimately deposited at the P. S. by Brahma Din Shukla, opposite party. The case of the petitioner is that the opposite party had taken it on hire and then deposited it. The case of the petitioner is that he had purchased it from one Ram Chandra of Meerut and had got it registered in his name at Allahabad. The chesis number and engine number are given in the registration book. The petitioner also holds a permit for plying this truck. According to the opposite party, the truck had been taken from him by one Ram Kishan alias Mithai for repairs. But he did not return it back after repairs and gave out that he was getting it plied making earnings. It is his further case that Harish Chandra is brother-in-law of Ram Kishan. According to him, he once found the truck standing and Ram Kishan being at the steering wheel. On seeing him, Ram Kishan ran away. He then took the truck and deposited it at the police station.

(2.) ACCORDING to the opp. parties, the registration number of the truck actually was UTN 2657. The engine number and the chesis number were also different. ACCORDING to him, all this had been altered in order to show that it did not belong to the opposite party. The case is still under investigation. The truck was deposited at the police station on 26-7-1977. It was examined by the Head Constable who was attached with Motor Transport section. His report was to the effect that its chesis number was 312,056,76,11065 which appears to be original. The engine number 7611344 was there but the number plate had been refitted. On behalf of the opposite party, a counter-affidavit has been filed along with Annexure C. A. I which is a report of the expert of Tata Engineering and Locomotive Co. Ltd. It only states that the chesis number had been punched on a different location and the chesis number reads 3120367611065. It has nowhere been stated in the report that at that place where the original should have been, there are any marks of eraser. As stated above, the case of the petitioner is that he had purchased it from Ram Chandra of Meerut and that Ram Chandra had purchased it from the Military disposal. The truck is lying rotten at the police station for about 8 months, and no use of the same can be made.

(3.) IT would be in the interest of the parties if the truck is not allowed to not in the police custody which is lying there from along time, and not to deprive the party which is prima facie entitled for its possession. The learned Magistrate refused to exercise the powers vested in it specially in view of the single Judge decision of this Court, referred to above. The order passed by the learned Magistrate may be considered as interlocutory order although it has some finality so far as proceedings under Section 437 CrPC are concerned at this stage.