BHAWANI SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This revision petition has been filed by the petitioner with the prayer that the order dated 28-9-2002 passed by the learned Addl. Chief Judicial Magistrate No. 2, Bikaner, by which he decided three applications together filed under Section 457, Cr.P.C. one by the petitioner, second by the respondent No. 2 Khuman Singh and third by the respondent No. 3 Prem Prakash and ordered to give the custody of the Jeep No. RJ 19 C 6339 (old) and RJ 19 T 2836 (new) to the respondent No. 3 Prem Prakash, be quashed and set aside.

(2.) It arises in the following circumstances: On 27-3-2002, the petitioner lodged a report in th,e Police Station Sadar, Bikaner stating inter alia that he purchased one Mahendra D.I. Jeep No. RJ 19-C 6369 from Eicon Finance Company (respondent No. 2) after taking loan from the Bank of Baroda under Finance Scheme. It was further stated by the petitioner in that report that on 25-3-2002 at about 6.00 p.m., he went to Hanumangarh after keeping the jeep in question in the house of his relative Deewan Singh and on 27-3-2002, Deewan Singh informed him on telephone that the Jeep in question had been taken away by somebody else after breaking the lock of main gate. On this report, police registered the case and chalked out regular FIR No. 68/02 for the offence under Section 379, IPC and started investigation and during investigation of the police, the police file was called by this Court and the same is attached with this file. The case of the petitioner Is that he purchased the Jeep in question on the basis of hire-purchase agreement for the respondent No. 2 for Rs. 2,68,508 and against that amount, he had already paid Rs. 4,16,.989/- to the respondent No. 2, but in spite of that, In the absence of the petitioner, the respondent No. 2 had taken the Jeep in question from the custody of the petitioner and not only this, thereafter, the respondent No. 2 got the Jeep in question registered as Taxi and obtained new number being RJ 19T 2836. The police investigation file further reveals that the respondent No. 2 had further sold the Jeep in question to the respondent No. 3 Prem Prakash and during the course of investigation, on 13-9-2002. police seized the Jeep in question from the custody of the respondent No. 3 Prem Prakash and there is no dispute on the point that registration of the Jeep in question bearing new No. RJ 19 T 2836 is in the name of the respondent No. 3 and on that day, he was registered owner. When the Jeep in question was seized by the police on 13-9-2002, three applications were made by three persons, namely, petitioner, respondent No. 2 and the respondent No. 3 under the provisions of Section 457, Cr.P.C. seeking custody of the Jeep in question before the Court of Addl. Chief Judicial Magistrate No. '2 Bikaner. The learned Addl. Chief Judicial Magistrate No. 2, Bikaner through impugned order dated 28-9-2002 decided all the three applications under Section 457, Cr.P.C. together and he came to the conclusion that the respondent No. 3 Prem Prakash was registered owner of the Jeep in question when it was seized by the police on 13-9-2002 and, therefore, he ordered that the custody of the Jeep In q'uestion be given to the respondent No. 3 Prem Prakash holding inter alia :

(3.) In this petition, it has been submitted by the learned counsel for the petitioner that since the petitioner had already paid the entire amount of the Jeep in question to the respondent No. 2, therefore, taking of Jeep in question by the respondent No. 2 from the custody of the petitioner without terminating the agreement and without giving show cause notice and an opportunity of hearing to the petitioner, was illegal and without jurisdiction. Hence, since in the very beginning the Jeep in question was in the possession and custody of the petitioner, therefore, it should have been given to him and giving of custody of Jeep in question to the respondent No. 3 is illegal and without jurisdiction because right in his favour was created later on. Thus, impugned order of the learned ACJM giving custody of the Jeep in question to respondent No. 3 cannot be sustained and liable to be quashed and set aside.