SHARMA, C. J. - (1.) THIS is a petition under section 482, Cr. P. C. for setting aside the order of the Chief Judicial Magistrate, Barmer, dated September 16, 1982, by which the petitioner's application under section 457, Cr. P. C. for delivery of a truck N. RJC 1213 to him was dismissed and the possession of the said truck was handed over to non-petitioner No. 3 on his furnishing a personal bond in the amount of rupees two lacs with two sureties of rupees one lac each with stipulation till the decision of the case the vehicle will be kept in order and the Superddar shall maintain full account of its income and expenditure and will not transfer it to any other person and will produce it in the court on September 24, 1982 and all subsequent dates of hearing.
(2.) THE relevant facts giving rise to this petition may be briefly stated as follows: - One Makbool Khan lodged a first information report in writing with the Station House Officer, Barmer, on June 3, 1981, wherein it was alleged that truck No RJC. 1213 was purchased by him from Bhanwar Lal on January 24, 1981, who got this vehicle registered in the name of the complainant. This truck was attached to Munshi Transport Company, Deedwana, Branch Local and Makbool Khan, complainant, used to drive it but on account of his son's marriage on April 10, 1981, he entrusted this truck to Ayub Ali, proprietor, Munshi Transport Company in the presence of Ram Lal Barber about 10 or 12 days before April 10, 1981. After the marriage was celebrated the complainant went to Jaipur on April 18, 1981 and came to know that Ayub Ali had taken away receipt for payment of tax of the truck. Thereupon, the complainant came to Barmer and further came to know that Ayub Ali managed to get the vehicle transferred to his name by preparing a forged document. The police registered a criminal case under sections 406,407, 411, 420, 465, 471 and 120 B. I. P. C. on the written report made to it by Makbool Khan, complainant, and took up usual investigation into the matter. In the course of investigation, the police arrested Asgar Ali and Manohar Ali, non-petitioners on August 24, 1982 and recovered the truck in question on September 6, 1982. On September 9, 1982, non-petitioners Ayub Ali, Kayum Ali and Munshi Ali were also taken into Police custody and thereafter were sent to judicial custody and were, latter on, released on bail on September 10,1982. The petitioner thereafter presented an application under section 457, Cr. P. C. to the Chief Judicial Magistrate, Barmer, for delivery of the truck to him. Non-petitioner Kayum Ali also moved an application in the said court for delivery of the trunk to him on the ground that Ayub Ali, non-petitioner, had transferred the truck to him on January 12, 1982. and he got the truck financed by the United Commercial Bank, Deedwana, for a sum of Rs. 60,000/ -. The learned Chief Judicial Magistrate, Barmer after hearing the parties passed the impugned order on September 16, 1982, and directed that the truck in dispute be handed over to Kayum Ali, non-petitioner because he had obtained the registration certificate in his name. Aggrieved by this order the petitioner filed in the first instance, a revision petition in this court, which was later on treated to be a petition under Section 482, Cr. P. C. at the request of Mr. R. N. Bishnoi, learned counsel for the petitioner. The petition was admitted by this court on September 27, 1982 and notices were ordered to be issued to the non-petitioners Mr. B. R. Arora accepted notice on behalf of non-petitioners No. 3 and (4) and Dr. S. S. Bhandawat appeared on behalf of the State of Rajasthan. Mr. J. P. Joshi, later on, filed a separate power on behalf of non-petitioner No. 3 Kayum Ali. Firstly, it has been contended on behalf of the learned Chief Judicial Magistrate, Barmer, committed an error of law in directing the delivery of the disputed truck to Kayum Ali, non-petitioner, who is an accused in the criminal case registered by the police on the first information report lodged by the petitioner. It was further urged that the Chief Judicial Magistrate did not take into consideration the important aspect of the case that the alleged letter of sale dated May 12, 1981, on the basis of which the ownership of the truck in question was alleged to have been transferred to non-petitioner Ayub Ali was found to be a forged one by the Forensic Science Laboratory, Jaipur and that a strong prima-facie case under sections 420, 465, 467 and 471, I. P. C. has been made out against Ayub Ali, Kayum Ali and Munshi Ali. According to the submission of the learned counsel for the petitioner there was sufficient material on the record that the truck in question was sold by Bhanwar Lal in favour of the petitioner by a letter of sale on the basis of which the truck was registered in his name on January 21, 1981 and that the petitioner only was the person entitled for getting delivery of the truck, because there was nothing on the record to show that the petitioner transferred the ownership of the truck in favour of Ayub Ali or in favour of some other person in the month of May, 1981. Mr. Balwant Arora. on the other hand, contended that the truck in question was recovered by the police from the possession of the non-petitioners and they were the only persons entitled to get its delivery. According to the learned counsel the truck was purchased by non-petitioner Ayub Ali from Hardeo Singh, who, later on, transferred it to Kayum Ali.
(3.) I have given my earnest consideration to the rival contentions mentioned above. It will not be out of place to mention that the truck in question is not yet produced before a criminal court during an inquiry or trial, because no charge-sheet has been filed in the court by the police in the case registered on the basis of the first information report lodged with the police by Makbool Khan, petitioner. The case is at the stage of investigation and the stage of enquiry or trial has not yet come. Hence, the Chief Judicial Magistrate, Banner, was empowered to exercise jurisdiction under section 437, Cr. P. C. When the factum of seizure of the truck by the police was brought to his cognizance by petition of the petitioner and the opposite parties. The only controversy before me is as to whether the petitioner or Kayum Ali, non-petitioner, is the person who is entitled to the possession of the truck. Hence, it is not a case where the person entitled to possession is not known, because there is a rival stand of the petitioner and of the opposite-parties relating to entitlement to the possession of the truck in dispute. The Chief Judicial Magistrate was no doubt empowered to pass an order as he thought fit respecting the disposal of the truck but before he ordered delivery of the truck to Kayum Ali, non-petitioner, he ought to have taken into consideration the important fact whether Kayum Ali was entit-ed to the possession thereof and whether the truck was seized in respect of the alleged offiences irrespective of the fact whether the police had or had not come to a conclusion that a challan should or should not be filed against the accused in the criminal court. The learned Chief Judicial Magistrate could not treat Kayum Ali as a person entitled to the possession of the truck, so long as the investigation of a criminal case against him was pending and he was suspected of having committed a crime, because the person entitled to possession must be one from whose possession the property was seized and whose possession of the property was lawful. A person who is under suspicion of having committed a crime or against whom an investigation of a criminal case is pending cannot be safely held to be a person entitled to possession of the property seized from him, until a final report is submitted by the police or until the suspicion of having committed a crime against him is cleared off. Reference in this connection be made to M. S. Jaggi vs. S. Mehapatra (1) and A. S. S. Ahmed vs. Police Commissioner (2 ). Consequently I am of the view that the actual possession of the truck at the time it was seized by the police from Kayum Ali could be a relevant factor but not conclusive to determine the question which party was entitled to possession thereof, because Kayum Ali might be in un lawful possession of the truck at the time it was seized and in that case he cannot be said to be entitled to possession thereof. The learned Chief Judicial Magistrate entrusted the truck to Kayum Ali on Superdnama merely because the truck was seized from him by the police and because registration of the truck was in his name. He did not take into consideration the allegation that this truck was alleged to have been purchased by the petitioner from Bhanwar Lal through Hardeo Singh and on January 21, 1982, and that Bhanwar Lal's son Om Prakash wrote a letter to his uncle to get the truck in question transferred in the name of Makbool Khan petitioner, and the truck in fact was got transferred in the name of the petitioner by Kewal Mal partner of Bharat Construction Company, Barmer, and who thereafter gave the petitioner the registration certificate of the truck also. The learned Chief Judicial Magistrate, Barmer, ought not to have ignored the fact that in the first information report Makbool Khan petitioner levelled a charge against Ayub Ali and Munshi Ali that they prepared a fetter of sale under the forged signatures of the petitioner and got it attested by a Notary Public and on its basis got the truck transferred in the name of Ayub Ali, who, later on, sold it away to Kayum Ali. The learned Magistrate ought to have found out whether the registration certificate of this truck was in the name of the petitioner prior to the alleged sale of the truck to Ayub Ali and Kayum Ali because in the affidavits put in by Hardeo Singh an J Ashok Kumar it is specifically denied that the truck was sold away to Makbool Khan, petitioner. In my opinion, the mere fact that the registration certificate of the truck was shown to be in the name of Kayum Ali was not sufficient to treat him the person entitled to the lawful possession thereof, until a final report was given by the police in the criminal case or until the suspicion of having committed crime by Kayum Ali non-petitioner is cleared off. In this view of the matter, the impugned order passed by the learned Chief Judicial Magistrate, Barmer, cannot be said to be legal, proper and reasonable. The result of the above discussion is that I accept this petition under section 482, Cr. P. C. set aside the impugned order passed by the Chief Judicial Magistrate, Barmer on September 16, 1982, and direct that the truck in dispute be delivered to Makbool Khan, petitioner, upon his furnishing a Superdnama in the amount of rupees two lacs with two sureties of rupees one lac each to the satisfaction of the Chief Judicial Magistrate. Barmer, with stipulation to keep the truck in order and to produce it in the court as and when required to do so and to keep regular account of its income and expenditure and to deposit all the taxes in time. .;