BANAMALI MOHANTA Vs. BASANTA KUMAR SAHOO

JUDGEMENT

(1.) Grant of custody of a vehicle during pendency of a case by exercise of power under section 457 of the Code of Criminal Procedure, 1973 (in short, the Code) is the subject matter of challenge in this application.

(2.) The fact situation as portrayed by the petitioner is to the following effect Opposite party no. 1 Basanta Kumar Sahoo was the owner of a truck bearing registration No. ORJ 4302. On 18.8.1987 he sold the said truck to one Raghab Chandra Behera and executed a deed of transfer in favour of Shri Behera and also affirmed an affidavit acknowledging the transfer of the vehicle in question and handed over the original registration certificate book, permanent road permit, fitness certificate, insurance certificate etc. to Shri Behera and also filed an application form for transfer of the vehicle in the office of the R.T.O., Keonjhar. As there was some arrear tax, the ownership of the vehicles could not be transferred in favour of Shri Behera. The petitioner purchased the said truck from Shri Raghab Chandra Behera on 11.5.1990 and executed an agreement for transfer of the said truck for Rs. 1,85,000/- and Shri Behera delivered possession of the truck to the petitioner on receipt of Rs. 85,000/- with a stipulation that the balance amount would be paid in two installments. The original registration certificate book, road permit, insurance certificate and fitness certificate were handed over by Shri Behera to the petitioner. The petitioner plied the vehicle for some time, and deposited the road tax in the office of the R.T.O. On 15.7.1990 the opp. party No. 1 approached the petitioner to take the vehicle on monthly hire basis. The petitioner finding the proposal acceptable, agreed to the same and handed over the vehicle to opposite party no. 1 for plying the same and to pay him the monthly hire charges. Unfortunately after taking the vehicle the opp. party no. 1 did not pay the hire charges, as a result of which automatically on completion of a month from the date of taking over possession, the oral agreement was deemed to be cancelled and the petitioner was entitled to get back the vehicle. When the petitioner approached the opp. party No. 1 he refused to pay the also refused to handover the truck. On 3.11.1990 the petitioner lodged first information-report and G.R. Case No. 255 of 1990 was registered in the court of the learned Sub-divisional Judicial Magistrate, Karanjia (in short, SDJMT) under section 406 of the Indian Penal Code, 1860 (in short, IPCT) against opp. party No.1. On 6.11.1990, the truck was seized from the possession of opp. Party No. 1 and the documents including the affidavit sworn by opp. party No.1 were seized from the possession of .the petitioner. Both the petitioner and opp. party no. 1 filed applications under section 457 of the Code in the court of the learned SDJM, Karanjia with a prayer to release the truck during pendency of the case in their respective favour. On 12.2.1991 the learned SDJM allowed the petition of opp. party No.1 and directed release of the truck in his favour mainly on the ground that he is the registered owner. The petitioner preferred criminal revision No. 75 of 1990 in the court of learned Sessions Judge, Saripada against the order of the learned SDJM, who dismissed the revision mainly on the ground that the allegation against the opp. party No.1 being regarding breach of agreement, the same amounts to civil liability for which the criminal proceeding is not maintainable. In the meantime charge-sheet has been submitted against opp. party No.1 under section 420, IPC, challenging the refusal to accept the prayer of the petitioner for release of the vehicle in his favour, this petition under section 482 of the Code has been filed.

(3.) The stand of the petitioner in essence is that the vehicle should be handed over to the person who is entitled to the possession thereof. It is urged that the available documents on record clearly show that opp. party No. I was not the owner of the vehicle and had transferred the same to Shri Raghab Chandra Behera who in his turn transferred the same to the petitioner. The refusal to accept the prayer of the petitioner has been termed to be the outcome of non-application of mind. The learned counsel for opp. party no. 1 on the other hand has submitted that he is the owner of the vehicle and two courts have found that he was entitled to the custody of the vehicle. It is also submitted that the power under section 482 is to be sparingly exercised and it is not a case where there is any apparent infirmity in law, and therefore power under section 462 of the Code should not be exercised.