AB AHAD WANI Vs. ALI MOHD LASOO

JUDGEMENT

(1.) THIS application under section 561 -A Cr. P. C. arises out of a litigation pending between the parties in the courts, below. The facts briefly stated are: the respondents filed a complaint under section 392 RFC in the court of Judicial Magistrate 1st Class City Magistrate) Srinagar with the allegation that a Mini Bus No. 5499 JKB alongwith route permit No. 577 MB was forcibly taken out of their possession from Bus Stand Buchhpora on 26.7.1979. It was claimed that the Bus belonged to the respondents and that it was in their possession and it was forcibly taken out of their possession Bachhpora Bus stand when it was in the control of their driver Bashir Ahmad. On receipt of the complaint the learned Magistrate took the cognizance of the matter and recorded statements of two witnesses of the respondents. Thereafter the learned Magistrate vide his order dt: 27.7.1979 forwarded the complaint for finding the truth or falsehood of the same to the police for investigation and enquiry u/s 202 Cr. P. C. On the receipt of the complaint u/s 202 Cr. P. C., the police concerned began to make enquiries and investigate the matter, during the course of which it was seized the Bus.

(2.) AN application for quashing the order of the learned Magistrate forwarding the complaint for enquiry and investigation to the police under sec : 202 Cr. P. C. came to be presented in this court, on 31.7.1979. The respondents in their objections stated that they were the owners of the bus in question and that the permit issued by the authorities under Motor Vehicles Act was also in their name. Some time ago they executed an agreement in favour of the petitioner and on payment of money handed over the possession of the bus to the  petitioner but ownership of the bus continued to remain with them The petitioner, however, transferred the possession of the Bus to Sidiq Nath and another vide an agreement entered into between the petitioner and Sidiq Nath. A dispute arose between the petitioner and Sidiq Nath and another and the petitioner filed a complaint against the Sidiq Nath in the court of Judicial Magistrate at Srinagar. The Magistrate forwarded the complaint u/s 202 Cr. P, C. to the Police for investigation and report. The bus came to be seized by the police during the investigation. On submission of the report after enquiry and investigation by the police it was found by the learned Magistrate (2nd Addl: Munsiff) Srinagar that no offence was made out and that if at all any dispute was there between the parties, it was of the civil nature, and in consequence the Magistrate dismissed the complaint. The Bus therefore, remained in possession of Sidiq Nath and another. After some time Sidiq Nath and another executed an agreement in favour of the respondents in accordance with which the possession of the bus was transfer -ed to the respondents who through their driver Bashir Ahmad began to ply the same. In this manner the Bus again came to be possessed by the respondents in whose name the permit of the Bus also stands. It is alleged by the respondents in their objections as well as in their complaint under sec: 397 RPC that on 26.7.79, the petitioner along with his son and a number of his supporters took forcible possession of the bus at Bashhpora at 10 PM when the bus was on regular service after giving a beating to the driver and the conductor of the respondents. It has been alleged that the bus is owned by the respondents and was in their possession at the time when it was forcibly taken out of their possession at Baohhpora. The respondents alleged that the agreement which had been executed in favour of the petitioner was only with regard to the possession of the bus and no ownership was transferred to the petitioner as the same could not have been done under the provisions of Motor Vehicles Act, and as such even if there was a stipulation in the agreement to the effect that the ownership of the bus has also been transferred to the petitioner that stipulation being illegal and unwarranted under the provisions of Motor Vehicle Act, was not valid in the eye of law and could not be enforced. It has been further stated in the objections that the petitioner as well as the person in whose favour he had transferred the possession of the bus were liable to pay the instalments to the financiers but the petitioner and other having failed to do so have violated the terms of the agreement and as a consequence the respondents had to pay the instalments to the financiers from their own pocket. The bus is hypothecated to the J and K Bank Ltd. Srinagar and the respondents under the Hire -Purchase Agreement are required to pay the hire -purchase money in instalments.

(3.) BASHIR Ahmad son of the petitioner was holding a power of attorney on behalf of the respondents with regard to the aforesaid bus. This power of attorney appears to have been executed in his favour alongwith the agreement referred to above executed by the respondent in favour his father, the petitioner, presumably to secure the payments made to the respondents and also to deal with the Bus in authorised position. When the Judicial Magistrate (2nd Addl. Munsiff) Srinagar on 14.3.1979 dismissed the complaint of the petitioner and released the bus in favour of Mohd Sidiq Nath and another from whom it was seized by the Police, Bashir Ahmad as attorney of the respondents filed a suit in this court for declaration and for the recovery of the bus. The respondents came up and on application were permitted to be substituted as plaintiffs for Bashir Ahamad as the power of attorney executed by the respondents in his favour had been cancelled. The respondents thus came to be substituted as plaintiffs in the civil suit No. 37 of 1979. Mohd Sidiq Nath and another were the defendants in that suit. The newly substituted plaintiffs and the defendants arrived at a compromise and the possession of the bus was handed over to the respondents and the suit came to be dismissed on compromise. The possession of the Bus changed hands and it came to be possessed by the respondents under the terms of the compromise between the respondents and Sidiq Nath and another. There was respite for sometime but some time thereafter the complaint u/s 392 RFC was filed by the respondents while a civil suit was lodged by the petitioner on the same day in a court of Munsiff at Srinagar, which is also pending between the parties and in which an order directing the maintenance of status quo with regard to the Bus has been issued.