NAVIN CHANDRA SHARMA, J. - (1.) PETITIONER Chhaganlal has invoked the inherent powers of this Court under Section 482 Cr. P. C. to quash an interlocutory order passed by the Chief Judicial Magistrate, Jhalawar on May 19, 1982 regarding the interim custody of a tractor No. R. J. Q. 1217 and its trolly No. R. J. Q. 1218 pending the conclusion of the inquiry and trial of a case registered at Police Station, Jhalarapatan on a first information lodged by Smt. Basanti Bai wife of Laxmi Narain.
(2.) FACTS, in brief, as alleged in the petition are that Smt. Basanti Bai wife of Laxminarain lodged a first information report on April 20, 1982 at Police Station Jhalara Patan alleging that eight month prior to that, the aforesaid tractor with its trolly were purchased in the name of her son Shyamlal. While this tractor and trolly were engaged in transporting Bajri from the river Kali Sind, the same was snatched away from its driver by Jagdish who is son of the petitioner Chhaganlal. On this report the Police registered a case under sections 379 and 341 1. P. C. against Jagdish and the tractor with its trolly was seized from the petitioner's house. For the interim custody of this tractor and trolly, three claimants came forward before the Chief Judicial Magistrate Jhalawar and they were the petitioner, Shyamlal son of Smt. Basanti Devi and Central Bank of India, Jhalarapatan. Chhaganlal claimed custody of the tractor and the trolly on the ground that he was the registered owner of this tractor and all the papers relating to these vehicles were in his name and further the hypothecation papers from the Bank were also in his name and he had still to discharge the outstandings of the bank. The Central Bank claimed for the interim custody on the ground that it had advanced loan on the hypothecation of this tractor and trolly and they were hypothecated with the Bank and the Bank is entitled to retain them till their debt was discharged. Claim of Shyamlal for interim custody was that he had purchased this tractor from Madanlal who had purchased the tractor from Chhaganlal and the sale documents had been produced before the Police during the course of investigation. At the time when the incident occurred, the tractor was in possession of Shyamlal. There had also been an accident in which the tractor was seized and it was handed over to Shyamlal by the Judicial Magistrate, Jhalawar for interim custody. He also got the tractor repaired. He has been paying the dues of the Bank also and, therefore, he was most proper person to whom the interim custody should be given of the tractor and the trolly. The Chief Judicial Magistrate, Jhalawar, after hearing the three claimants, passed the impugned order for giving the tractor and the trolly in the custody of Shyam Lal pending the conclusion of the inquiry and trial. Mr. Sayed Manzoor Ali appearing for the petitioner Chhaganlal strongly urged that Chhaganlal was the registered owner of the truck and the truck should have been handed over in the custody of Chhaganlal under section 451 of the Criminal Procedure Code. He also urged that the dispute between Shyam Lal and Chhaganlal relating to this tractor was of a civil nature and as a matter of fact the entire criminal proceedings launched against his son were not maintainable in a criminal court. He has placed strong reliance upon the decision of a single Bench of this Court in Allarakh Vs. State (1) and also upon the decision of the Supreme Court in Sardar Trilik Singh Vs. Satyadeo Tripathi (2 ). I have gone through both the decisions. The facts in Allarakh's case were that one Asgar Ali was the registered owner of truck No. RJZ 1871 and chesis number of the said truck was 312056, 1602344. Asgar Ali was in need of some finances and he, therefore, got the truck financed from Rathore Finance Corporation, Pali and an amount of Rs. 17, 500/- was taken under a higher purchase agreement. Allarakh was a guarantor for the payment of this amount by Asgar Ali. It was alleged that few instalments could not be paid and, therefore, the truck was given to Allarakh under an oral agreement that Allarakh will pay Rs. 200/- per day till such time as the entire loan of the financer is wiped out. It was alleged that the entire loan was paid off by Allarakh and, therefore, in order to deprive Asgar Ali of the truck, and its income, Allarakh got the chesis number and engine number erased and gave out that he had purchased truck from one Avtarsingh who in turn had purchased it from Army Disposal and he got fresh registration certificate of the truck, from R. T. O. Jodhpur who assigned it registration No. RSN 2898. Asgar Ali filed a report and after investigation a charge sheet was filed against Allarakh under section 420 and 467 of the Indian Penal Code. The truck was seized from the custody of Allarakh by the Police. On these facts, it was held by his Lordship M. B. sharma, J. that Allarakh was the registered owner of the truck and prima facie it appeared that he had purchased it from Avtarsingh. He, therefore, allowed the application of Allarakh and directed that the truck may be given in the custody of Allarakh on 'supardginama'. Claim of Asgar Ali was dismissed. If the facts in Allarakh's case and the present case recorrectly marshalled, it would appear that this decision does not help the petitioner. One of the important point to be noted is that in Allarakh's case, the charge-sheet was filed against Allarakh for the offences under section 420 and 467 I. P. C. In the present case, the offences under sections 379 and 341 I. P. C. have been registered against Jagdish son of the petitioner and the first report was that Jagdish had committed theft of the tractor and the trolly from the possession of Shyamlal. Without expressing any opinion about the merits of the case and without giving any guidance to the trying court regarding the commission of the offence, academically and legally it is stated that for the commission of theft all that is necessary is that any movable property should be taken by any person dishonestly from out of the possession of any person without that person's consent. Commission of theft consists in moving an movable property of a person out of his possession without his consent with a dishonest intention. Even temporary dispossession may constitute theft. Where the taking of movable property is in the assertion of a bonafide claim of right, the act though it may amount to a civil injury, may not fall within the offence of theft. In Allarakh's case there were two persons claiming themselves to be the registered owners of the truck. One was Asgar Ali. He was registered owner of truck No. RJZ 1871. The other was Allarakh who claimed to be registered owner of truck No. RSN 2898. It was not possible to say at the moment when Allarakh's case was decided that before the eraser the chasis number and engine number were the same as claimed by Asgar Ali. In the present case, it has been mentioned by the Chief Judicial Magistrate that the tractor and trolly were in possession of Shyamlal before the alleged offence of theft was committed. The tractor and trolly were seized from the possession of Jagdish or house of his father Chhaganlal. On these facts, prima facie Jagdish or Chhaganlal came into possession of the tractor not with consent of Shyamlal but otherwise There was material in investigation that Chhaganlal had transferred this tractor to Madanlal under a stipulation that the registration will also be transferred after the discharge of the bank dues. There were documents to show that Shyamlal had been paying the tax of this tractor since 1982 and had also got repaired the tractor. He had also paid an amount of Rs. 8000/-, to the Central Bank of India on March 26, 1982. In such circumstances, the Chief Judicial Magistrate, Jhalawar has passed the right order that the tractor and trolly bearing the numbers aforesaid should be handed over to the interim custody of Shyamlal. So far as the decision of their Lordships of the Supreme Court in Sardar Trilok Singh's case is concerned, the facts of that case are not at all applicable to the present case. That case, firstly, did not relate to the question of interim custody because in that case it was prayed that on the facts and circumstance of the case only a civil liability was created and no criminal offence what so ever was made out. Such a question does not call for determination in this petition of the petitioner. Secondly, in that case the financerhad terminated the hire-purchase agreement and had seized the truck in exercise of the bona fide right seizing the truck on the failure of Satyadeo Tripathi to pay the third monthly instalment in time. Trilikshing's case, therefore, does not help in the determination of the question involved in this petition. I, therefore, do not find any merit in the petition and do hereby dismiss the same. .;