RAM UDAY PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') is directed against the order, dated 1-8-1987 passed by Shri A. P. Sharma, Judicial Magistrate, Begusarai, in Case No. 44C/86, by which he has rejected the prayer of the petitioner for release of Maxi-taxi, bearing Registration No. B. R. I. 7451, in his favour.

(2.) The petitioner claims release of the vehicle in his favour on the ground that the certificate of registration lies in his name and thus he is the owner of the vehicle in question. Admittedly this vehicle was purchased and is registered in the name of the petitioner by taking loan from the State Bank of India, Begusarai, and in security of the loan the petitioner has mortgaged his own land to the State Bank of India. The opposite party No. 2 Ramashish Singh on the other hand claims release on the vehicle on the ground that he is the guarantor in loan transaction. Besides on the ground that a partnership firm, named and styled as M/s. Ramashish Singh and Company, was created and a deed of partnership was executed by the parties on 2-9-1985 to run the business of plying the aforesaid vehicle and according to the terms of the agreement he was to get 90% of the income from the vehicle and 10% was to go to the petitioner after deducting all the expenses.

(3.) The facts which are not in dispute and are relevant for the purpose of disposal of this application, are that the vehicle in question was registered in the name of the petitioner in the register of the motor vehicle authority. This vehicle was purchased after taking loan from the State Bank of India and in the name of the petitioner, in which transaction opposite party No. 2 was merely a gurantor. On 8-9-1985 the petitioner lodged a case at Cheria Bariyarpur Police Station, which was registered as Cheriabariarpur P. S. Case No. 107/85 under Sections 341, 379, and 323 of the Indian Penal Code against opposite party No. 2 Ramashish Singh and one Hare Ram Singh. On the same day the police officer of Cheria Bariyarpur Police Station seized the Maxi-taxi, bearing No. B. R. I. 7451, i.e., the vehicle in question from the Sahan of opposite party No. 2 Ramashish Singh. The First Information Report was received in the Court of Judicial Magistrate concerned at Begusarai on 11-9-1985 and on that date a petition was filed by the petitioner before the Judicial Magistrate for release of the vehicle in question in his favour. On the next date, i.e., on 12-9-1985 it appears that a petition for the release of the aforesaid vehicle was also filed on behalf of opposite party No. 2, who also appeared through the counse. by filing Vakalatnama in the Court of Judicial Magistrate. The petitions of the parties were not disposed of then and there by the Judicial Magistrate. In the meantime a protest petition was filed on behalf of the informant, i.e., the petitioner on 19-9-1985. By order, dated 5-10-1985 the Judicial Magistrate called for a report from the Officer-in-charge of Cheria Bariyarpur Police Station, as to whether the Maxi-taxi in question has been seized by the police or not. It appears from the lower court record that the report of the Officer-in-charge of Cheria Bariyarpur police station was received on 8-10-1985 in which it was reported that the Maxi-taxi in question, bearing No. B. R. I. 7451, was not seized nor seizure list was prepared but it was kept in the police station. On the same date it appears to have been submitted before the learned Magistrate that final report in the case had been submitted by the Investigating Officer. On this very date a petition was filed on behalf of the opposite party No. 2 praying therein that the Investigating Officer may be directed not to release the vehicle in question till the disposal of the petitions filed by the parties for the release of the vehicle and on the basis of that petition the Judicial Magistrate directed the Investigating Officer not to release the vehicle till the petition of the parties were pending in the court and were disposed of. On 14-10-1985, the lawyers for the parties were heard on the question of release of the vehicle in question and from the order, dated 14-10-1985 passed by learned Judicial Magistrate it appears that the Investigating Officer had also disclosed in his report that the vehicle in question had not been seized in connection with the criminal case but had been brought to the police station in order to avert breach of peace. In view of the fact that the final report under Sections 323, 342 and 379 of the Indian Penal Code had been submitted by the Investigating Officer and that the vehicle in question had not been seized in connection with this case, the learned Judicial Magistrals came to the conclusion that the petitioner filed by the parties had become infructuous and hence the petitions of both the parties were rejected. The earlier order passed by the learned Judicial Magistrate directing the concerned police station not to release the vehicle till the disposal of the petitions of the parties was also vacated. It appears that on the same date a petition was filed on behalf of the petitioner in the court of Judicial Magistrate stating therein that the petitioner intended to move the Superior Court against the orders of Judicial Magistrate passed on 14-10-1985 and hence a prayer was made in that petition that the vehicle in question should not be released to any party of the case till further orders of the Court. Accordingly, the learned Judicial Magistrate on 16-10-1985 directed the police station concerned not to release the vehicle in question to either of the parties till 12 days from that date, i.e., till 28-10-1985, by which date the petitioner was directed to produce the order of the superior court if any. The period of the aforesaid order directing the Police Officer of Cheria Bariyarpur Police Station not to release the vehicle in question was further extended on some ground or other from time to time. The petitioner thereafter filed a criminal revision before this court, being Cr. Revision No. 870/85, on 6-11-1985 which was finally disposed of by order, dated 9-1-1986 with a direction that the learned Judicial Magistrate will dispose of the protest filed in Cheria Bariyarpur Police Station Case No. 107/85 as early as possible and then pass appropriate orders in accordance with law regarding release of the vehicle in question. It was farther ordered by this court in the meantime the police shall not release the vehicle in question.