V.P.Mathur - (1.) MR. N. C. Jain, the then Special Judge, Ghaziabad, while deciding Criminal Revision no. 12 of 1984, vide his order dated 11-6-84 allowed it and set aside the order passed by MR. Subhash Chandra, Additional Munsif-Magistrate, Hapur, on 4-1-84.
(2.) THE brief facts of the matter as they appear from paragraph no. 2 of the learned Judge's judgment and from paragraph nos. 1, 2 and 3 of the judgment of the learned Magistrate are as follows :-- An application was moved by Devendra Kumar before the Station Officer, Police Station Bahadur Garh, district Ghaziabad, on 3-12-1983 with the allegations that Motor Cycle No. UPP 8941 of which he is the registered owner was given to him at the time of his marriage is 1982. This motor cycle was forcibly snatched from him on 16-11-1983 by Radhey Lal Sharma, Shiv Kumar Sharma and Satyapal Singh while he was going to village Sehal and as such he requested the police Authorities that the motor cycle may be restored to him. It appears that the police seized the motor cycle from the possession of revisionist Shiv Kumar Sharma and kept it in the police station. On 10-12-83 Shiv Kumar Sharma moved an application before the Deputy Superintendent of Police, Hapur, that he had purchased the aforesaid motor cycle for Rs. 7000/- on 16-11-82 from Devendra Kumar and that Devendra Kumar wrongly reported the matter to the police regarding its forcible removal from his possession. An enquiry was made by the Circle Officer, Hapur, who reported the seizure to the Magistrate and then the Magistrate passed the order to the effect that the witnesses of this alleged sale were not supporting the case of sale by Devendra Kumar to Shiv Kumar Sharma and since Devendra Kumar had the registration in his name, hence the motor cycle should be restored to him and the parties be left free to initiate proceedings in the Civil Court to establish their claim and title. The learned Sessions Judge disagreed with the learned Munsif-Magistrate and his view was that the case was covered by Sec. 451 of the CrPC and the property should be returned to the person from whose possession it was taken. I have heard the learned counsel of both the sides. There is no dispute as regards the fact that Devendra Kumar lodged a report with the police to the effect that while he was going to his village his motor cycle in question was snatched by three persons. On the basis of that report the police moved and took the motor cycle into possession from Shiv Kumar Sharma. Then the matter was reported to the Magistrate. The case was clearly covered by Section 457, CrPC. Sections 451 and 452 of the Criminal Procedure Code will have no application to this case because the former applies to the cases when the property is produced before the criminal court during inquiry or trial and the latter applies to the cases when an inquiry or trial is concluded and final order of disposal etc. has to be made by the court. It will be wrong to assume that the case in question will not be covered by Sec. 457 CrPC. It only lays down two conditions which has to be fulfilled before the court can act under this section and those two . conditions are that there should be seizure by any police officer and that it should be reported to the Magistrate ; and that the property itself is not produced before the court in any inquiry or trial. These two conditions are fulfilled in this case. The term " person entitled to the possession of the property " cannot be equated with actual possession. What is material is as to which of the two claimants is entitled to possession of the property. It is conceded by the learned counsel for the revisionist that where the question of entitlement of the motor cycle is concerned, since the registration stands in favour of Devendra Kumar, his case is better for getting the relief. This being so, I think that the learned Sessions Judge's order was not called for and cannot be up-held. The motor cycle in question has to be given back to the custody of Devendra Kumar as has been done by the learned Magistrate on the terms and conditions already fixed by him and the parties have to be left free to resort to civil litigation in order to establish their title to the property in question.
(3.) IN the result, the revision is allowed. The order passed by Mr. N. C. Jain, Special Judge, Ghaziabad, on 11-6-84, is quashed and the order passed by Sri Subhash Chandra, Addl. Munsif-Magistrate, Hapur on 4-1-1984 is restored. Revision allowed.;