Decided on May 19,1965

Lal Behari Rai Appellant
State Through M/S. General Finance Respondents


H.C.P.Tripathi, J. - (1.)Truck No. UPL 2702 was purchased by Smt. Sneh Lata Roy, wife of the applicant, from M/s. Central Financiers, Halwasia court, Lucknow, on hire purchase system. The aforesaid truck was attached by the civil court and handed over to the Supurdgi of Sri Mani Ram Sahu. A case under Sec. 379 I.P.G. was instituted by Girja Nand, Mukhtar-e-am of Mani Ram, against the applicant on the assertion that he had dishonestly removed the truck from the possession of Mani Ram. During the course of proceedings launched on the basis of the aforesaid complaint the truck was seized by the police under the orders of the Magistrate from the custody of one Jang Bahadur Singh to whom it had been sent for repairs by the applicant. The complaint under Sec. 379 I.P.G. was ultimately dismissed on 30-4-1962 and the applicant was acquitted but no orders were passed by the Magistrate releasing the truck in favour of any party. Subsequently M/s. Central Financiers applied for the release of the truck in their favour. A notice was issued to Smt. Sneh Lata Roy, wife of the applicant who was the registered owner of the truck, to show case, which remained un-served. Even then no further notice was sent either to her or to the applicant, her husband, who had sent it for repairs and from 'whose possession it was seized under the orders of the Magistrate. The Magistrate passed an ex-parte order on 27.4.1963 releasing the truck in favour of M/s. General Financiers of Lucknow on their executing "an indemnity bond for Rs. 3000.00 to this court binding them to pay any claims that may arise against such delivery." On 9.7.1964 the applicant moved the learned Magistrate to recall his earlier order and to "order the delivery of the truck to the applicant as it had been seized under the orders of the court from the possession of the applicant." This application was, however, rejected by the Magistrate and the learned temporary Civil Sessions Judge, Varanasi, on being moved refused to interfere with the order releasing the truck in favour of the opposite party. Hence this revision which was admitted by a learned single Judge of this Court on 13.12.1955 who passed an order that the truck in dispute shall be re-attached by the learned Magistrate and be kept in the custody of some suitable Supardar until further orders of this Court.
(2.)I have heard learned counsel for the parties. I am of opinion that the order passed by the Magistrate releasing the truck in favour of the opposite; party was wholly improper and must be set aside. It is no doubt true that a discretion is vested in the trial Magistrate under sub-section (4) of Sec. 517 Cr. P. C. to deliver any property under the provisions of sub-section (1) to any person claiming to be entitled to the possession thereof but such discretion is not to be exercised arbitrarily f but according to sound judicial principles.
(3.)It is well established that where there has been an enquiry or trial and the accused parson is discharged or acquitted by any criminal court, that court should ordinarily restore the property, the subject matter of investigation, to the person from whose custody it was taken; any person other than the one who was in possession of the property, claiming to be the owner, must prove that the property is his.

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