M.P.Saxena - (1.) KALAPNATH Singh, has filed this revision application against the judgment and order dated 18-1- 1977 passed by the Sessions Judge, Azamgarh.
(2.) BRIEFLY stated the facts giving rise to this revision application are that Sheonath Rai, opposite party, was the owner of motor vehicle No. UTD 4928. He had purchased it after taking loan from the Union Bank and the car was pledged with it. He was paying the loan by instalments to the Bank. He obtained possession over the vehicle and after obtaining its registration under the Motor Vehicles Act in his name started plying it. The present revisionist lodged a report under Section 379 IPC alleging that he had purchased the said vehicle from Sheonath Rai on 12-6 - 1975 for Rs. 22,330/-. He also started paying the remaining instalments to the Union Bank and as such, became owner of the vehicle but in the night between 26th/27th Oct. 1976, Sheonath Rai took away the vehicle by force. After necessary investigation the police submitted a charge sheet against Sheonath Rai. During the pendency of the case Kalapnath Singh moved an application under Section 451 of the Criminal Procedure Code (516-A of the old Code) for release of the vehicle in his favour. After considering the case of the parties and examining the evidence on the record, the learned magistrate came to the conclusion that prima facie Kalapnath Singh was entitled to the custody of the vehicle. Accordingly he released it in his favour. Sheonath Rai filed a revision application and the learned Sessions Judge held that even if Kalapnath Singh had paid any money to Sheonath Rai and had also paid instalments of the loan to the Bank he could not become owner of the vehicle because its registration was not transferred in his name under Section 31 of the Motor Vehicles Act. In his opinion, if the registration of the vehicle stood in the name of Sheonath Rai, the original owner, he would be deemed to be its owner. He, therefore, allowed the revision application and vacated the order passed by the learned Magistrate and directed that the vehicle be given in the custody of Sheonath Rai on his furnishing a personal bond of Rs. 10,000/- and two sureties for a like amount and on giving an undertaking that the vehicle shall be made available to the court whenever called upon to do so. It is against this order that Kalapnath Singh has filed this revision application. Several questions of interest have arisen in this revision application. In the first place, the learned counsel for the revisionist has urged that the order passed by the magistrate was of a interlocutory nature and was not amenable to revision under the new Code. There is force in this contention because the order came into existence after the promulgation of the new Code. The order of the magistrate was passed under Section 451 of this Code which relates to disposal of property pending trial in certain cases. An order under this section is not final order because a final order is passed when an enquiry or trial in any criminal court is concluded and at that stage the court is competent to pass a final order regarding disposal of property under Section 452 of the new Code. The order passed by the learned magistrate being of an interlocutory nature was not open to revision and the learned lower revisional court was not competent to interfere with it. The learned counsel for the opposite party has vehemently contended that an order under Section 451 is no doubt passed during an enquiry or triad but where it affects rights or obligations of the parties it will not be deemed to be interlocutory. In this connection reliance is placed on the case of Amarnath v. State, AIR 1978 SC 19. There is not much substance in this contention because a final order is contemplated by Section 452 of the Code and an order- passed under Section 451 of the Code, though it may temporarily affect rights or obligations of the parties is yet an interlocutory order. Even if the order passed by the learned magistrate is held to be not of interlocutory nature and open to revision, the question would still arise whether it suffered from any such illegality or procedural error that it could be interfered with by the learned lower revisional court.
(3.) ON the basis of the material on the record the learned lower revisional court came to the conclusion that there was prima facie material to establish that the vehicle in dispute was transferred by Sheonath Rai to Kalapnath Singh and that the latter had paid some money to the former and obtained possession over the vehicles yet the former continued to be the owner by virtue of Section 31 of the Motor Vehicles Act, 1939, because the transferee had not got the registration done in his name. This view was taken on the basis of certain decisions. It will not be out of place to refer to these decisions here. In Padamadevi v. Gur Bux Singh, AIR 1973 Rajasthan 317 it was held that the provisions of Section 31 of the Motor Vehicles Act being mandatory, compliance therewith is necessary for effecting legal transfer of ownership of a public vehicle. Only the ostensible owner is entered in the registration book as the legal owner though somebody else may be the real owner. This view was reiterated in Maina v. Niranjan Singh, AIR 1976 Rajasthan 71 in which it was held that a mere transfer of ownership accompanied by delivery of possession of a transport vehicle registered under the Act does not confer any title on the transferee unless the registration is changed in the name of the transferee in accordance with the provisions of Section 31 of the Act. I am respectfully unable to subscribe to this view because Section 22 of the Motor Vehicles Act, 1939, lays down that no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with Chapter III of that Act and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner. Sections 23 and 24 of the Act prescribe the procedure how the application for registration of vehicle is to be made and the place where the vehicle is to be registered. Section 28 says that such a certificate of registration issued in respect of any such vehicle shall be effective throughout India. Section 31 of the Act provides for transfer of ownership of any such vehicle. It lays down that where the ownership of any motor vehicle is transferred the transferor shall within 14 days of the transfer report the transfer to the Registering Authority and shall simultaneously send a copy of the report to the transferee and the latter shall within 30 days of the transfer report the transfer to the Registering Authority within whose jurisdiction he resides and shall forward the certificate of registration to the Registering Authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer and ownership may be entered in the certificate of registration. It follows from Sections 22, 23, 24, 28 and 31 of the Motor Vehicles Act, referred to above, that the registration certificate is an essential necessity before any motor vehicle can be used and that any person in whose favour the certificate of registration is 'issued obviously would be the owner thereof. The person in whose name the vehicle stands registered with the Registering Authority under the Motor Vehicles Act is prima facie the owner of a motor vehicle and is entitled to its custody unless any other person establishes his superior title or claim over it. This view finds support from the case of Hardan Singh v. Vidya Sagar, 1974 CrLJ 1158.;