HASTIMAL Vs. BHOJA

JUDGEMENT

(1.) THIS revision petition has been directed against the order passed by Additional Sessions Judge, Beawar dated 3rd July, 1961 reversing the order passed by Additional Chief Judicial Magistrate, Beawar dated 5th Novem-ber, 1986 in an application for interim custody of the tractor bearing registration No. RSZ-2437.

(2.) BRIEF facts leading to this petition are that the petitioner Hastimal's driver Durga Singh lodged a report at Beawar City Police Station on ! 1th Sept. 1986 alleging that he is working as a driver with petitioner Hastimal who had given in his charge one tractor mark 'ford' bearing registration No. RSZ 2437 along with a compressor drilling machine and few more accessories. On 5th September, 1986 one man whose name was Bhoja and who is known to him approached him and accompanied him to a place known as Chang Gate. He (Durga Singh) got clown for taking some goods. By that time, this man (Bhoja) escaped with the tractor and its accessories. He informed his master i. e. the petitioner. Thereafter for 2-3 days there were negotiations between the parties but Bhoja refused to return the tractor which he had stolen. On receipt of this report, a case for offences under Section 379 I. P. C. was registered. Accused non-petitioner Bhoja was arrested on 15th October, 1986 and on an information furnished by him under Sec. 27 of the Evidence Act, the, tractor was recovered on 16th October, 1986. When the tractor was seized, the petitioner as well as the non-petitioner No. 1 both moved applications before the learned Additional Chief Judicial Magistrate, Beawar for handing over the tractor on Supurdginama during the pendency of the case. Petitioner's case before the learned Additional Chief Judicial Magistrate was that the aforesaid tractor was initially registered in the name of Shri Tolaram who sold it to one Onkar Singh. Onkar Singh in turn sold the tractor to one Shyam Singh. Shyam Singh thereafter sold it jointly to Raju Singh, and Samda. Samda later on settled the accounts and withdrew his ownership and Raju Singh remained the sole owner of the tractor. It was from Raju Singh that petitioner Hastimal purchased it for Rs. 1,00,000/- on 20th Aug-ust, 86 and paid Rs. 5000/- as advance. It is pleaded that with giving of this advance (SAI) of Rs. 5000/- Raju Singh handed over the possession of the tractor to the petitioner. Rest of the amount was to be paid in instalments of Rs. 12,000/-each. It was further pleaded that since after the date of purchase i. e. 20th August, 1986 he continued to be in possession of the tractor but on 5th September, 1986 the non-petitioner No. 1 Bhoja came along with some more persons and without the permission of the petitioner removed it along with compressor and other accessories. The report of this was lodged at Beawar police station and the tractor has been seized. It was further mentioned in the application that on 17-10-1986 (it should have been 17-10-1985 and appears to have been wrongly written in the application as 17-10-1986) this tractor was purchased by Shri Bhoja and Lilaram for a sum of Rs. 1,20,000/- and they had to pay instalments at the rate of Rs,15,000/- per month with 2% interest to Shri Rah Singh but the conditions of agreement were violated. Therefore, Raju Singh served a notice on Bhoja and Bhoja in turn returned the tractor with all accessories to Raju Singh, who appointed Narain Singh as a Manager for operating this tractor. Since then till the sale to the petitioner, the tractor was in possession of the petitioner. It was, therefore, prayed that he being the original owner and claimant of the property and further because non-petitioner No. 1 Bhoja committed the theft, the property should be given to him on Supurdginama during the pendency of the case.

(3.) REGARDING the question of maintainability of the revision before the learned Additional Sessions Judge by Bhoja, suffice it to say that the learned Additional Sessions Judge has arrived at a finding after careful discussion of the case law. He has distinguished between the provisions of Sec. 451 and 457 of the Code of Criminal Procedure and has rightly observed that Section 451 Cr. P. C. was not applicable as the property was not produced before any Criminal Court during inquiry or trial and, the order of the learned Chief Judicial Magistrate could not only be purported to have been passed under Sec. 457 Cr. P. C. He has decided the point after discussing the judgments of this Court and their Lordships of the Supreme Court and I do not find that the approach taken by him is incorrect. Hence, the revision petition before the learned Additional Sessions Judges was maintainable and since the order was reversed, this petition could also be filed.