SAYAD HYDER HUSSAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The only point involved in this application under sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short, the CodeT) is whether the learned Sub-Divisional Judicial Magistrate, Sambalpur (in short, S.D.J M.) was justified in holding that opposite party No. 2 was entitled to get possession of the seized bus during pendency Of the proceeding in G.R. Case No. 1138 of 1994.

(2.) A brief reference to the factual aspects as presented by the petitioner is necessary. Originally the bus bearing registration No. OSS 2411 which is the subject-matter of contention was owned by one Bichittar Singh. On 22-5-1992 said Bichittar Singh entered into an agreement for sale of the said vehicle with Uttam Dash and two of his associates, namely, Bishikeshan Behera and Akhtar Ali Pursuant to the said agreement, possession of the vehicle was delivered to Uttam Dash and his two associates. As they could not manage the bus properly and sustained loss on account of their engagement in other business, they entered into an agreement for sale with petitioner on 21-7-1993. The consideration was fixed at Rs. 2,50,000/-. It was stipulated that initially Rs. 50,000/- was to be paid in cash. The amount was paid and Uttam and his associates acknowledged receipt of the same. So far as the balance amount is concerned, monthly instalment was fixed at Rs. 8,000/- to be paid by the first week of the succeeding month till the entire amount is cleared up. It was agreed that Uttam and his associates would transfer ownership of the bus in favour of the petitioner. In Clause 4 of the agreement it was stipulated that the petitioner was authorised to pay any legitimate dues outstanding against the bus in Government records with the knowledge of Uttam and his associates, and such payments when made shall be adjusted from the balance sale consideration payable by the petitioner. In case there was default in making the payment of instalment, Uttam and his associates were entitled to take possession of the bus from the petitioner and the amount already paid was to be forfeited. Petitioner was liable to pay taxes, claims etc., in respect of the vehicle after 21-7-1993. Prior to that date it shall be responsibility of Uttam and his associates. Petitioner took delivery of the bus alongwith the connected documents. The bus was plied for some time by the petitioner with assistance of his father guardian. Monthly instalments were being regularly paid and last instalment was paid on 5-7-1994. It was noticed by the petitioner that a sum of Rs. 39,000/- was in arrears till 21-7-1993 for taxes, which was paid o the Regional Transport Officer on different dates after 21-7-1993. However, after payment of the arrear road tax, further liability to the extent of nearly Rs. 80,000/-, i.e., Rs. 11,352/- towards arrear taxes and Rs. 68,526/-towards penalty, was outstanding. Strangely while the petitioner was in lawful possession of the bus, Uttam and his associates forcibly took away the same without informing the petitioner and his father, when the bus was stationed at a private bus stand at Sambalpur. When father of the petitioner came to know of such removal, he searched for the bus, but could not trace out the same. He, therefore, lodged a report at the Town Police Station, Sambalpur on 23-9-1994 and the vehicle was seized and a case under section 379/34 of the Indian Penal Code, 1860 (in short, I.P.C.T) was instituted against Uttam and his associates. The case originally registered as Town P.S. Case No. 329 dated 23-9-1994 was numbered as G. R. Case No. 1138 of 1994 in the file of learned S.D.J.M., Sambalpur. The bus was seized at Katapalli under Burla Police Station from the possession of Uttam and his associates. While investigation was going on, notice was issued under section 160 of the Code directing Uttam and his associates to produce the R. C. Book, road permit, insurance document etc. Uttam filed an application before the learned S.D.J.M. styling it as one under section 457 of the Code for release of the vehicle, and same was registered as Criminal Misc. Case No. 148 of 1994. Similar application was filed by the petitioner for release of the bus in his favour. A report was called for from the Inspector-in-charge, Town Police Station, Sambalpur relating to seizure of the bus in question. It was reported by the Inspector-in-charge that Uttam and his associates took away the bus in question forcibly from the bus stand without knowledge of the petitioner. It was also reported that the petitioner was in physical possession of the bus for about 13 months. The learned S.D.J.M. considered both the applications and the materials placed relating to seizure of the vehicle and directed release of the vehicle in favour of Uttam and his associates on execution of a bond of Rs. 1 lakh with a direction to produce the same as and when directed. The said order is under challenge.

(3.) According to learned counsel for petitioner the course adopted by the learned Magistrate was uncalled for. The facts of the case are tell-tale and bona fides of the petitioner in repaying the amounts as per the agreement are apparent. Even if there was any violation as claimed by the opposite parties, possession of the vehicle should have been delivered to the petitioner during trial. Learned counsel for opposite party No. 2 on the other hand submitted that in the agreement there was clear stipulation for seizure in case of default.