BROJENDRA CHANDRA DEY Vs. KSSAMA

JUDGEMENT

(1.) In this case, it appears that a complaint was made to the Chief Presidency Magistrate to the effect that the applicant before us one Brojendra Chunder De, had taken a certain motor bus on hire purchase terms from the complainant. The petition of complaint went on to say in somewhat remarkable language that the applicant before us had made default in payment of the hire; that on 21 May the complainant's representative, Thakur Bhagwan Singh duly served the termination of the hire whatever that may mean and lawfully recovered the bus from the possession of the said Brojendra Chunder De and granted him a receipt and that thereafter the said Thakur Bhagwan Singh in company with another employee of the complainant, went to a garage at Bentinck Street and while they were inside making arrangements for the garaging of the bus, the bus was stolen from the road and was in the possession of the said Brojendra Chunder De. Looking at the meaning of that, it is very likely that it does not mean that on 21 May, the representative of the complainant went to the accused and got the bus delivered by the accused to him by way of terminating by consent the hire purchase agreement. It would appear that having as he said, "lawfully recovered " the bus by some strategy or trick, immediately therefore, while his men were still trying to make arrangements for garaging the bus which they had just got, the accused person managed to get back the bus by equal strategy and equal craft. Now the first thing that occurs to one upon this complaint is that, if a person hires a bus from another on hire purchase terms and the hire is not paid, he may demand the bus back and, if he cannot get it back, he may recover it by proceedings in the civil Court. It is very manifestly disclosed by this complainant that it is a ease of a disingenuous trick by one who has no particular liking for the civil Court and prefers methods (which are not intended for that purpose) of the criminal Court to be employed in order to recover his property. In that way, the complainant brings a charge of theft and of receiving this bus by unlawful means and, when the matter comes before the Magistrate, the Magistrate hears the complainant as on his complaint ho is obliged to do. He does not issue any process; he does not seem to take at all seriously the question of the offence against the public by committing theft or receiving stolen goods; but he issues a notice to produce the bus-the whole complaint from beginning to end being a device to get possession of the bus. The production of the bus was only necessary in order that, if the Magistrate ultimately came to the conclusion that it had been stolen, he would be able to hand it back to the rightful owner. On 13 June, the case was fixed for 4 July.

(2.) On 4 July, the opposite party, that is, the present petitioner, appeared and said that the oar was under repair. So the Magistrate allowed him, on giving a bond of Rs. 2,000, time till 12 July to produce the bus. On 12 July he ordered the bus to the complainant on a bond of Rs. 2,000, and thus the complainant by this way on giving this bond gets back the bus. Ha gets the bus back in a very short time by a proceeding which is quicker and less costly than if he had gone boldly, plainly and straightforwardly to the civil Court. On 19 July, it appears that the present applicant went to the High Court bringing a suit for declaration that he was entitled to the bus; and because he had gone to the High Court, and because he had no specific order from the High Court to the contrary, the Magistrate directed the bus to remain with the complainant. On 30 July, there being still no specific order from the High Court in favour of the petitioner, the order made was : " Let the car remain with petitioner. File." So, the charge of theft or of receiving stolen goods has never really come into the picture, has never been dealt with or investigated, and, as long as the complainant is in possession of the bus, he does not intend that it shall be investigated. Whether there has been theft or whether there has been any other offence, the complainant has got the bus and there is no further desire on his part in the matter. In the end there has been a successful attempt by means of a charge of theft which has never been seriously put forward and investigated to get the criminal Court to do the work of the civil Court. In my opinion the whole thing is wrong. Section 516-A, Criminal P.C., deals with property appearing to have been used for the commission of any offence or property regarding which any offence appears to have been committed. That is the first thing. In such case, the Court: may make an order for the custody of the property pending the conclusion of the. enquiry or trial, the reason being that in some cases it becomes necessary to preserve the property either as evidence or in order to make a proper order after the criminal case has come to an end. Section 517, Criminal P.C., says: When an enquiry of a trial in any criminal Court is concluded, the Court may make such order as it thinks fit for the disposal by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been committed.

(3.) In the present case, it seems to me that, as there was no further prospect of any further attempt to prove that the accused had stolen this bus or committed any offence with reference to it, the pro-per order to make was to hand over the bus to the man with whom it had been at the beginning. So long as somebody was trying to show that the accused has stolen it, there could be some sort of reason in giving custody to another. But the moment that matter is abandoned or not further prosecuted, the best thing, if only to save the criminal Court from being abused is to hand the property back to the man who had produced it.