Decided on September 26,1968

MITHALAL Appellant


D.S.DAVE, C.J. - (1.)THIS is a revision application by one Mithalal and it arises in the following circumstances.
(2.)ONE Bheemraj Kothari presented on 26th Agust, 1967 a complaint before the Sub Inspector Than Mandi, district Udaipur, that one jeep car No. R.J.S. 102 Which belonged to his nephew Mithalal, was entrusted to Prabhulal on the condition that during the election period he would make an earning by hiring it out and that after the elections would be over, the jeep would be returned in running condition, or that, in the alternative, Prabhulal would pay Rs. 6000/ - to Mithalal and get the registration certificate transferred in his name. It was further stated that Prabhulal executed a document on 19.8.67 for the return of the jeep and further obtained an amount of Rs. 100/ - for its necessary repairs and agreed to deliver possession of the vehicle en 24 -8 -67, but he did not keep his promise and misappropriated it by delivering it to somebody -else. It was thus alleged that Prabhulal had committed on affence of criminal breach of trust. On receiving this report, the police made an investigation, seized the said jeep from the possession of Prabhulal and after completing investigation, challaned Prabhulal in the Court of Munsif -Magistrate, Udaipur, for an offence under Section 406 IPC on 22 -9 -67. Even before this challan was presented, Mithalal presented an application in the Court of Munsif -Magistrate under Section 517 Cr. P.C. with the request that the jeep seized by the police should be handed over to him. This application was contested on behalf of the accusted. It was asserted by him that he had purchased the said jeep and that Mithalal had no subsisting title there to. On 30.11.67 the Magistrate decided Mithalal's application filed under Section 517 Cr. P.C. and dismissed it. It was observed by him that the ownership of the jeep was the subject -matter of dispute and that unless material prosecution witnesses are examined, it would not be proper to release it in Mithalal's favour. It was ordered by him that the jeep should remain in the custody of the police during the pendency of the case. Aggrieved by this order, Mithalal presented a revision application which was heard by the Additional Sessions Judge, Udaipur. The learned Additional Sessions Judge also observed that it was not possible for him at the present stage of the case to express an opinion about the documents which were relied upon by the contending parties and that the Magistrate was just fled in keeping the jeep in police custody. Thereafter, it was noted by him that Mithalal's learned Counsel had suggested that the jeep should be kept in a garage and that the Mithalal would be prepared to meet the rental charges of the garage. This suggestion was accepted by him and he directed the Magistrate that the police authorities should be ordered to keep the said jeep in garage which would be taken on hire by Mithalal and its rent would be paid by him. It was further ordered that Mithalal may be allowed the aid of a mechanic to have a complete check -up of to the jeep and to make a note about the condition of its machinery and material parts. Mithalal was also allowed to keep his tock on the garage along with the lock of the police. This order was to be complied with within fifteen days. Mithalal is not satisfied with this order and, therefore, he has approached this Court.
Learned Counsel for the petitioner has strenoeusly urged that his client had produced before the learned Magistrate and the learned Sessions Judge the certificate of registration relating to the said jeep and other documents which clearly go to show that he was the owner of the property and that, under the circumstances, the vehicle ought to have been given over to him on his furnishing security to produce the vehicle before the court whenever required. It was further urged that if the vehicle would remain under the police custody, the petitioner would be deprived of the earning which he would make by plying it on hire and the condition of car would also go on deteriorating on account of lack of its use and proper care.

(3.)SHRI Nauratanmal Singhvi appearing for accused Prabhulal contests the revision application. It is urged by him that the jeep might have belonged to Mithalal at one time, but its ownership was transferred to the accused and that the vehicle was in the ownership and possession of the accused at the time it was seized by the police. It is contended that unless the court came to the clear conclusion that an offence was proved against the accused, it had no authority to hand over the possession of the vehicle to Mithalal or Bheemraj. On the contrary, if the court came to the conclusion that the offence under Section 406 IPC was not proved against the accused, there would be no alternative for the court but to return the possession of the vehicle to the accused. It is also urged that, in fact, there is a civil dispute between the parties about the vehicle and that Mithalal and Bheemraj are trying to recover its possession by giving to the transaction a colour of offence. It is also pointed out that although the challan was put up as early as on 22.9.67, neither the complainant nor the police have examined even a single witness before the trial court so far although a period of more than a year has elapsed.

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