PANCHANAN MOHANTY Vs. STATE OF ORISSA AND ANOTHER

JUDGEMENT

(1.) Invoking the inherent jurisdiction of this Court under Sec. 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') the petitioner calls in question the legality of the order in Criminal Revision No. 2/93, passed by the learned 1st Additional Sessions Judge, Cuttack, who has affirmed the order passed by the learned JMFC (P) Kujanga in G.R. Case No. 405 of 1991, wherein the learned Magistrate has directed interim release of seized vehicle in favour of opposite party No. 2 herein.

(2.) The facts in a nutshell are that the opposite party No. 2 had purchased an Auto Rickshaw in the month of May, 1991. Due to urgent need of money, he sold the same to the petitioner on 28.8.91 for a consideration of Rs. 34,000.00. Consideration being paid receipt was granted by the opposite party No. 2 herein and papers were prepared for transfer of the vehicle and the auto-rickshaw in question was handed over to the petitioner. On 4.10.91 when the said vehicle was being used by the petitioner through his driver one Sukanta Kishore Nayak, some persons obstructed the driver and took away the auto-rickshaw and cash of Rs. 560.00. An FIR was lodged which gave rise to Kujanga P.S. Case No. 136/91 and ultimately came to be registered as G.R. Case No. 405/91 in the court of JM FC Kujanga. After completion of investigation, charge-sheet was filed against the opposite party No. 2 and some others for offences under Sections 341, 379, 323/34 and 109 IPC. During investigation, the auto-rickshaw was seized and given in zima to the petitioner. On 23.10.92, the opposite party No. 2 herein filed an application under Sec. 457 of the Code for grant of zima of the vehicle in his favour. The learned Magistrate allowed the application by holding that the accused is the owner of the seized autorickshaw and the sale in favour of the informant being disputed the alleged transferee is not entitled to possess the vehicle and should hand over the same to the registered owner. The aforesaid order was challenged in revision and the revisional court on perusal of the order passed by the learned Magistrate and the records of the G.R. case came to hold that prima facie there were no satisfactory materials to indicate passing of consideration. He has also recorded a finding that the original receipt and the original letter of transfer were not filed and, therefore, the finding of the learned Magistrate could not be found fault with.

(3.) Sri S.K. Misra, the learned counsel for the petitioner has submitted that the orders passed by the courts below are absolutely illegal inasmuch as they have not kept in mind the established principles of law as enunciated by this Court in regard to the concept of interim release under section 457 of the Code. He also urged with vehemence that observation of the learned JMFC that accused Bipin had sold the Auto Rickshaw to Panchanan Mohanty for a sum of Rs. 34,000.00 has not been taken note of by the revisional court who has in a cryptic manner come to the conclusion that the finding of the learned Magistrate is not perverse. He has also submitted with emphasis that the documents which were seized from his custody clearly indicated that he was entitled to possess the vehicle and that being the sine qua non for grant of interim release, the approach of the courts below is fundamentally defective.