H.N.Kapoor - (1.) THIS is an application under Section 482 CrPC praying: that Truck No. UTY 4645 which has; been detained at P. S. Bidhuna in connection with a case under Sections 420/406 IPC, be released in favour of the petitioner. The learned Magistrate had passed an order dated 28-4-1977 to the effect that the case was under investigation and in view of the case law cite i, it was not proper at this stage to decide the question of disposal of property. At that time, there was a decision by Honourable Katju. J. in the case of Nannoo Mal v. Sher Mohammad Khan, 1976 AWC 251 to the effect that under Section 457 CrPC it was not possible to release the property during the course of investigation. 1 had differed from that view and had referred the matter to a larger Bench in the case of Abdul Razzak v. State of U. P., in case No. 1169 of 1977. I am informed that the Division Bench consisting of Honourable Malik, J. and Honourable Chaturvedi, J. has dictated the judgment on 8-2- 1978-since reported in 1978 AWC 225 = 1978 ACrR 140 upholding my view. I, therefore, heard the learned counsel for both the parties on merits. A counter affidavit has been filed on behalf of the State also in this case. In the counter-affidavit, it was stated that the metalic expert was to inspect the truck in the first week of February, 1978. I definitely ordered on 9-2-1978 that the report, if any, given by metalic expert shall be filed by today. No such report has been filed. Harish Chandra petitioner and Brahma Din Shukla opposite party both cLalmed to be the owners of the truck in dispute. Both have given different versions as to how it was taken away from the custody of one by the other. No doubt, it was ultimately deposited at the P. S. by Brahma Din Shukla, opposite party. The case of the petitioner is that the opposite party had taken it on hire and then deposited it. The case of the petitioner is that he had purchased it from one Ram Chandra of Meerut and had got it registered in his name at Allahabad. The chesis number and engine number are given in the registration book. The petitioner also holds a permit for plying this truck. According to the opposite party, the truck had been taken from him by one Ram Kishan alias Mithai for repairs. But he did not return it back after repairs and gave out that he was getting it plied making earnings. It is his further case that Harish Chandra is brother-in-law of Ram Kishan. According to him, he once found the truck standing and Ram Kishan being at the steering wheel. On seeing him, Ram Kishan ran away. He then took the truck and deposited it at the police station.
(2.) ACCORDING to the opp. parties, the registration number of the truck actually was UTN 2657. The engine number and the chesis number were also different. ACCORDING to him, all this had been altered in order to show that it did not belong to the opposite party. The case is still under investigation. The truck was deposited at the police station on 26-7-1977. It was examined by the Head Constable who was attached with Motor Transport section. His report was to the effect that its chesis number was 312,056,76,11065 which appears to be original. The engine number 7611344 was there but the number plate had been refitted. On behalf of the opposite party, a counter-affidavit has been filed along with Annexure C. A. I which is a report of the expert of Tata Engineering and Locomotive Co. Ltd. It only states that the chesis number had been punched on a different location and the chesis number reads 3120367611065. It has nowhere been stated in the report that at that place where the original should have been, there are any marks of eraser. As stated above, the case of the petitioner is that he had purchased it from Ram Chandra of Meerut and that Ram Chandra had purchased it from the Military disposal. The truck is lying rotten at the police station for about 8 months, and no use of the same can be made. The learned counsel for the opposite party has stated that the property cannot be given in the custody of the accused when a case is pending as he can tamper with it. There is no law which prevents the property being given in the custody of the accused during pendency of a case or investigation. The Court is expected to make proper order for its custody during the trial under Section 451 CrPC. When the trial or inquiry has not started, proper orders for its custody can be made under Section 457 CrPC which is similar to Section 523 CrPC (old). The only difference is that under Section 523 CrPC the police was bound to produce the seized property immediately before the Magistrate but now the police can take its own time and the Magistrate can pass suitable orders under Section 457 CrPC whenever the matter is brought to his notice either by the police or even by a person interested when the Magistrate calls for a report of the police. No doubt, a duty is cast upon the Magistrate under Section 457 CrPC to make inquiry as to which person is entitled to the possession thereof. In case a final report has been made and there is no case pending the order passed under Section 457 CrPC will have finality. But in case the investigation is pending, the Magistrate can pass an order for interim custody till the matter is finally decided and suitable order is passed under Section 452 CrPC. A division Bench of this Court in the case of Muneshwar Bux Singh v. State, AIR 1956 Allahabad 199 had observed as follows :- "We can visualize only three instances in which the property recovered from the possession of a person may be handed over to some other person. These three instances are ; 1. When the person from whose possession the property is recovered denies that it was recovered from his possession. Such a situation might arise in those cases where some stolen property is recovered from the possession of a person and the plea of the person from whose possession it is recovered is that it was planted in such a case even though no inquiry or trial be held by a Criminal Court, a Court acting under Sec. 523 Criminal P. C. can hand over this property to some person whose entitlement to possession is satisfactorily established after inquiry. 2. Where the property is recovered from the possession of a person but this possession has been acquired either in a dishonest or unlawful manner. 3. Where the person from whose possession the property is seized alleges that he is only in temporary custody of this property and it belongs to someone else. The instances given by us may not be exhaustive and it is possible that in the peculiar circumstances of a case an inquiry might be permissible but in our (opinion it is only in such and similar circumstances that a Magistrate is given a discretion to hold an inquiry." The learned counsel for the opposite party stated that in the present case the truck was deposited by the opposite party Brahma Din Shukla and as such it would be deemed that it was Recovered from his possession and as such the possession of the truck should be given to him. In fact, two reports were filed by Brahma Din Shukla. Earlier about the truck being missing and the second when it was seized by him and taken to the police station. He could have as well informed the police which could have seized it. In that case, it could not be said that it was actually recovered from the possession of Brahma Din Shukla. In my opinion for the purposes of interim custody, it has to be seen as to who is better entitled to its possession. It has already been stated that it is registered in the name of the petitioner Harish Chandra. Harish Chandra holds a permit for the same. He cLalms to have purchased it from Ram Chandra of Meerut. The learned counsel for the petitioner states that that receipt is to be deposited at the Transport office for the purposes of registration. The chasis number which appears to be Original according to the report of the police expert is same as is given in the registration number while according to the opposite party, it had different chasis number. So far. there is no evidence that the original number was at different location and it had been erased. All these circumstances go in favour of the petitioner and it can be said that he has established his case prima facie for getting the possession of the truck.
(3.) IT would be in the interest of the parties if the truck is not allowed to not in the police custody which is lying there from along time, and not to deprive the party which is prima facie entitled for its possession. The learned Magistrate refused to exercise the powers vested in it specially in view of the single Judge decision of this Court, referred to above. The order passed by the learned Magistrate may be considered as interlocutory order although it has some finality so far as proceedings under Section 437 CrPC are concerned at this stage. The learned counsel for the opposite party and the Deputy Government Advocate argued that this court cannot invoke its inherent powers under Section 482 CrPC under the circumstances of this case. In my opinion, in order to secure ends of justice, it appears to be a fit case in which this court should invoke its powers under Section 482 CrPC. The matter w,as recently considered by the Supreme Court in Madhulimaiya v. State of Maharashtra, 1978 AWC 96 and the principles were Lald down as to when the High Court can invoke its inherent powers under Section 482 CrPC for interfering with an interlocutory order.;