MAKBOOL KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a petition under section 482, Cr. P. C. for setting aside the order of the Chief Judicial Magistrate, Barmer, dated September 16, 1982, by which the petitioner's application under section 457, Cr. P. C. for delivery of a truck N. RJC 1213 to him was dismissed and the possession of the said truck was handed over to non-petitioner No. 3 on his furnishing a personal bond in the amount of rupees two lacs with two sureties of rupees one lac each with stipulation till the decision of the case the vehicle will be kept in order and the Superddar shall maintain full account of its income and expenditure and will not transfer it to any other person and will produce it in the court on September 24, 1982 and all subsequent dates of hearing.

(2.) THE relevant facts giving rise to this petition may be briefly stated as follows: -

(3.) I have given my earnest consideration to the rival contentions mentioned above. It will not be out of place to mention that the truck in question is not yet produced before a criminal court during an inquiry or trial, because no charge-sheet has been filed in the court by the police in the case registered on the basis of the first information report lodged with the police by Makbool Khan, petitioner. The case is at the stage of investigation and the stage of enquiry or trial has not yet come. Hence, the Chief Judicial Magistrate, Banner, was empowered to exercise jurisdiction under section 437, Cr. P. C. When the factum of seizure of the truck by the police was brought to his cognizance by petition of the petitioner and the opposite parties. The only controversy before me is as to whether the petitioner or Kayum Ali, non-petitioner, is the person who is entitled to the possession of the truck. Hence, it is not a case where the person entitled to possession is not known, because there is a rival stand of the petitioner and of the opposite-parties relating to entitlement to the possession of the truck in dispute. The Chief Judicial Magistrate was no doubt empowered to pass an order as he thought fit respecting the disposal of the truck but before he ordered delivery of the truck to Kayum Ali, non-petitioner, he ought to have taken into consideration the important fact whether Kayum Ali was entit-ed to the possession thereof and whether the truck was seized in respect of the alleged offiences irrespective of the fact whether the police had or had not come to a conclusion that a challan should or should not be filed against the accused in the criminal court. The learned Chief Judicial Magistrate could not treat Kayum Ali as a person entitled to the possession of the truck, so long as the investigation of a criminal case against him was pending and he was suspected of having committed a crime, because the person entitled to possession must be one from whose possession the property was seized and whose possession of the property was lawful. A person who is under suspicion of having committed a crime or against whom an investigation of a criminal case is pending cannot be safely held to be a person entitled to possession of the property seized from him, until a final report is submitted by the police or until the suspicion of having committed a crime against him is cleared off. Reference in this connection be made to M. S. Jaggi vs. S. Mehapatra (1) and A. S. S. Ahmed vs. Police Commissioner (2 ). Consequently I am of the view that the actual possession of the truck at the time it was seized by the police from Kayum Ali could be a relevant factor but not conclusive to determine the question which party was entitled to possession thereof, because Kayum Ali might be in un lawful possession of the truck at the time it was seized and in that case he cannot be said to be entitled to possession thereof. The learned Chief Judicial Magistrate entrusted the truck to Kayum Ali on Superdnama merely because the truck was seized from him by the police and because registration of the truck was in his name. He did not take into consideration the allegation that this truck was alleged to have been purchased by the petitioner from Bhanwar Lal through Hardeo Singh and on January 21, 1982, and that Bhanwar Lal's son Om Prakash wrote a letter to his uncle to get the truck in question transferred in the name of Makbool Khan petitioner, and the truck in fact was got transferred in the name of the petitioner by Kewal Mal partner of Bharat Construction Company, Barmer, and who thereafter gave the petitioner the registration certificate of the truck also. The learned Chief Judicial Magistrate, Barmer, ought not to have ignored the fact that in the first information report Makbool Khan petitioner levelled a charge against Ayub Ali and Munshi Ali that they prepared a fetter of sale under the forged signatures of the petitioner and got it attested by a Notary Public and on its basis got the truck transferred in the name of Ayub Ali, who, later on, sold it away to Kayum Ali. The learned Magistrate ought to have found out whether the registration certificate of this truck was in the name of the petitioner prior to the alleged sale of the truck to Ayub Ali and Kayum Ali because in the affidavits put in by Hardeo Singh an J Ashok Kumar it is specifically denied that the truck was sold away to Makbool Khan, petitioner. In my opinion, the mere fact that the registration certificate of the truck was shown to be in the name of Kayum Ali was not sufficient to treat him the person entitled to the lawful possession thereof, until a final report was given by the police in the criminal case or until the suspicion of having committed crime by Kayum Ali non-petitioner is cleared off. In this view of the matter, the impugned order passed by the learned Chief Judicial Magistrate, Barmer, cannot be said to be legal, proper and reasonable.