V.S. Sirpurkar, J.
1. The petitioner has approached this Court by a petition under section 482 of the Code of Criminal Procedure, 1973 invoking the inherent powers of this Court and in the process challenged the orders passed by the Chief Judicial Magistrate dated 6-12-1993 and 11-12-1993. They prayed that the custody of the Tata Diesel Vehicle in question should be handed over in their favour and their application to the Chief Judicial Magistrate in their behalf be allowed.
2. A short resume of the facts would highlight the controversy.
The petitioner is a Company incorporated under the Companies Act and deals in Tata Diesel Vehicles. There is a Hire Purchase Scheme of the Company. The non-applicant No. 2 - Awatarsingh Niranjansingh Saini was a person who was interested in hire purchase of Tata diesel truck. He, therefore, entered into an agreement of hire purchase with the Company. He was to pay the instalments as fixed in the Hire Purchase Agreement. It is an admitted case that in pursuance of this agreement, the vehicle was put at the disposal of the non-applicant No. 2 through the dealer of the petitioner Company - M/s. Jaika Motors Limited and the non-applicant No. 2 started plying this vehicle. It is also an admitted case that the said vehicle was registered with the Regional Transport Authority, Raipur with Registration No. MP 23-B 7230. It is also an admitted case that the hirer non-applicant No. 2 started making payments of the monthly instalment to the Company. The nature of the agreement was that after the full payment of all these instalments, the hirer had the choice either to return the truck or to claim its ownership. It is also one of the terms in the agreement that on failure on the part of the non-applicant to pay the said instalments, the Company had the right to take the possession of the concerned vehicle. It is also an admitted case that out of the total liability of Rs. 5,011,000/- approximately, about half the liability is already paid. We shall consider the terms and conditions of this agreement later on at the appropriate place, but to complete the summation of facts, it will be enough to state that the non-applicant No. 2 defaulted and failed to pay the instalments and as a result of that the company decided to take the possession of the truck. It seems that the Company used to get this job done through one company called Y.R. Pathan. One Hanubhai Solonki was an employee of this Company.
3. On 2-11-1993, this Hanubhai Solonki gave a report to the Police Station, Lakadganj, Nagpur in which he reported that Y.R. Pathan Company had decided to take the possession of truck No. MP 23/B 7230 as the owner of the truck had defaulted to make the payments. He claims that they had seized few vehicles and went to Bilaspur on 29-10-1993 and that on 2-11-1993 they had started from Raipur to Nagpur. He further claims that near Bhandara City they saw concerned truck No. MP 23/B 7230 near Forest Check Post and since that truck was in the list of the vehicles to be seized, the representative talked to the driver of the said truck and told him that since the dues were outstanding against the truck, the said truck was being seized. The name of this driver was Jagjitsingh. It is further claimed in the said report that the seizure was effected at Bhandara itself and the signature of Jagjitsingh was obtained in token of the possession. It is further claimed that the truck was being driven to Nagpur and they left Bhandara at about 4 O'Clock. It was claimed that when the said truck came near the octroi post, 4/5 persons were standing near the octroi post with sticks in their hands. They stopped the truck. Suleman Desai who was driving the truck, brought it to faulted and taking advantage of that, the driver of that truck got down. Apprehending danger to their lives it was claimed that the concerned persons fled to Nagpur. However, they were chased by the truck bearing No. MP 23/B 1650. Not only this, but some other persons followed on scooters and there the accused persons made an assault on the whole party. It was claimed that 3/4 persons from the assaulting party entered from the truck driver's side and the reporter was beaten. It was claimed that because of this, Suleman Desai who was driving the truck suffered a blow at the hand of driver Jagjitsingh, and therefore, he was put in the other vehicle and the trucks were brought to octroi post. It was claimed that the reporter was then confined in one of the rooms of the garage near the octroi post. It was claimed that when the truck was started back towards Bhandara, the police then came and the police arrested four persons on the spot and the others ran away. In the report, it was also clarified that Suleman Desai was badly injured and so was the reporter. On the basis of this report, the police ran into action. The truck was already seized. Suleman Desai who was badly injured lost his life, and therefore, the police started the investigation against the owner of the truck, the driver of the truck viz. Jagjitsingh and others.
4. This seizure of the truck which was done during the investigation of the crime of murder was reported to the Magistrate before whom an application came to be made by the present non-applicant No. 2 under the provisions of section 457 of the Code of Criminal Procedure. By this application, the non-applicant No. 2 sought the custody of the said truck. It was pointed out in this application that the non-applicant No. 2 was in the business of transport and repairing of the truck springs and that he owned the said truck being registered No. MP 23/B 7230 and the said truck was purchased from Raipur. It was also pointed out in their petition that the truck was seized by Lakadganj Police Station along with documents on 2-11-1993 on the ground that the truck was involved in Crime No. 767/93 for offence under sections 147, 148, 149, 365 and 302 of Indian Penal Code. It was claimed that the truck belonged to the real brother of the applicant viz. Gurmit Singh s/o Niranjan Singh Saini. It was further claimed that the applicant was arrested for the offences mentioned above on 2-11-1993 and was released on bail on 26-11-1993 along with some other persons. It was claimed that since the truck was standing in the Police Station and since the investigation was already completed and there was no necessity of keeping the truck in the custody, the same is liable to be released in favour of the applicant Awatarsingh s/o Niranjansingh Saini - the non-applicant No. 2 herein. It so happened that on this a no objection was given by the Investigating Officer. The other accused persons also gave no objection for handing over the truck to the non-applicant No. 2, and therefore, the Chief Judicial Magistrate passed an order on 6-12-1993 handing over the custody of the truck in favour of non-applicant No. 2.
5. When this came to the notice of the applicant Company, they without any loss of time filed an application under the provisions of section 451 and/or 457 of the Code of Criminal Procedure, 1973 on 31-12-1993. This application was signed by one Shri P.J. Vajifdar, the Law Manager of the Company and it was in the nature of objection to the order passed by the Chief Judicial Magistrate as also an application for the release of the vehicle in favour of the Company. It is pointed out in this application that the ownership of the said truck was admittedly that of the Company as it was agreed in the agreement that the Company would continue to be the owner of the truck till all the instalments in the hire purchase agreement were paid by the non-applicant No. 2. It is pointed out that the non-applicant No. 2 was a mere bailee in respect of the said truck. Reference to Clause Nos. 3 and 4 and Condition Nos. 4 and 6 is also given in the application by mentioning then verbatim and it is pointed out that since the non-applicant No. 2 had defaulted in the payment of the instalments on the day on which the incident took place as also on the day on which the order came to be passed in favour of the non-applicant No. 2 the real owner was not non-applicant No. 2 but the petitioner Company. It was pointed out that the possession of this truck was taken on 2-11-1993 by the Company and that when after the possession was taken and the truck was being brought to Nagpur, the accused persons including the non-applicant No. 2 along with others had assaulted the party who was bringing the truck to Nagpur and in the process murdered the driver Suleman Desai and causing injuries to one Hanubhai Solonki. It is pointed out, therefore, that there was no question of the custody of the truck being handed over to the non-applicant No. 2 as in fact the custody should have gone to the person who was entitled to hold the same till the criminal case was disposed of. It is pointed out that the non-applicant No. 2 could not be said to be a person who was entitled to have the custody in view of the hire purchase agreement and in view of the fact that the non-applicant No. 2 had admittedly defaulted to make the payment of the agreed instalments. It was pointed out that the non-applicant No. 2 had suppressed the fact that he was not the owner, and therefore, the custody of the truck was liable to be given in favour of the petitioner company. The Chief Judicial Magistrate heard all the concerned parties viz. the petitioner company, the prosecuting agency as also the non-applicant No. 2. The Chief Judicial Magistrate passed an order on 11-2-1994 by which he rejected the application filed by the petitioner Company. In effect, the claim of the Company to the custody of the vehicle was repudiated by the Magistrate and the Magistrate chose not to interfere with his earlier order granting custody in favour of the non-applicant No. 1. Feeling aggrieved by this, present petition is filed under the provisions of section 482 of the Code of Criminal Procedure, 1973.
6. Shri Agasti, the learned Counsel appearing on behalf of the respondent-non-applicant Awatarsingh Saini as also Shri Pande, the learned Additional Public Prosecutor appearing on behalf of State of Maharashtra, raised a preliminary objection suggesting that the petition as filed by the petitioner under the provisions of section 482 of the Code of Criminal Procedure was not maintainable in view of the observations made by the Supreme Court in a reported decision : 1993CriLJ1049 , Dharampal and others v. Smt. Ramshri and others. The learned Counsel pointed out that in paragraph 4 the Apex Court held as under :
'The question that falls for our consideration now is whether the High Court could have utilised the powers under section 482 of the Code and entertained a second revision application at the instance of the 1st respondent. Admittedly the 1st respondent had preferred a Criminal Application being Cr.R. No. 180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on 14th May, 1979. Section 397(3) bars a second revision application by the same party. It is now well settled that the inherent powers under section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside.:
The learned Counsel relied upon these observations by the Apex Court and more particularly the portion which is emphasised. The learned Counsel contends that since the order impugned is an interlocutory order, the said order could not have been revised because of an express bar contained in section 397(2). It is, therefore, that the High Court would also not be justified in exercising the powers under section 482 of the Code of Criminal Procedure. The learned Counsel rely also on the reported decision of the Supreme Court in , Simrikhia v. Dolly Mukherjee, where Fathima Beevi, J., has observed in paragraph 6 as follows :
'The inherent jurisdiction of the High Court cannot be invoked to override bar of review under section 362. It is clearly stated in Sooraj Devi v. Pyare Lal, : 1981CriLJ296 , that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The Court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials. The High Court has grievously erred in doing so. Even on merits, we do not find any compelling reasons to quash the proceedings at that stage.'
Relying on these two cases, the learned Counsel contend that since there is an express bar for revising an interlocutory order vide section 397(2), the High Court will not be justified in using its inherent powers under section 482 of the Code of Criminal Procedure to do which is precisely barred by the Court. No other case has been cited before the Court barring these two cases by the learned Counsel.
7. It will have to be seen whether this Court is precluded from exercising its inherent powers under section 482 in the circumstances stated earlier. In order to decide this question, it will have to be seen whether the above mentioned authorities relied upon by the learned counsel bind this Court. It can never be even dreamt that the Supreme Court decisions are not binding on this Court. This Court is aware of its limitations and also the binding nature of the decisions handed down by the Apex Court.
8. To counter the argument, however, Shri Manohar, the learned Counsel appearing on behalf of the petitioners urged that firstly the law laid down in the two decisions relied upon by the non-applicant was not applicable to the present situation. He also contended that in fact it cannot be said from the two above mentioned decisions that the Apex Court spelt out an absolute bar in the situation arising in this case. Further according to Shri Manohar, the two cases had to be read down in the light of the earlier judgment of the Supreme Court which were handed down by the larger Benches.
9. To test the rival contentions, we will have to trace out the history of the law laid down by the Supreme Court on the scope and powers under section 482 of the Code of Criminal Procedure.
10. The subject regarding the scope and magnitude of the powers under section 482 of the Code of Criminal Procedure came before the Supreme Court in a decision reported in : 1977CriLJ1891 , Amar Nath and others v. State of Haryana and others. That was a case where the Apex Court considered two questions. Firstly, it considered the scope of the power of the High Court under section 482 and it also considered the true and correct interpretation of the term 'interlocutory order' as those would appear in section 397(2) of the Code of Criminal Procedure. The question which fell for consideration in that case was as to whether an interlocutory order passed by the Magistrate was liable to be challenged before the High Court under the provisions of section 482 of the Code of Criminal Procedure and could the High Court use its inherent powers to annihilate such order. The Supreme Court observed in that case as follows :
'While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-section (2) of section 397 of the 1973 Code the inherent powers contained in section 482 would not be available to defeat the bar contained in section 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject matter. Where there is an express provisions, barring a particular remedy, the Court cannot resort to the exercise of inherent powers.'
In that case, the Apex Court further interpreted the term 'interlocutory order' and came to the conclusion that the order which was challenged in that particular case could not be said to be an interlocutory order and did not fall within the mischief of sub-section (2) of section 397 of the Code and was not covered by that provision. It, therefore, proceeded to hold that a revision against the order was fully competent under section 397(1) or section 482 of the 1973 Code, because the scope in both these sections in the matter of the kind was more or less the same. It will have to be seen and appreciated that the observations made by the Supreme Court in paragraph 3 which have been quoted above are almost identical with the observations made in Dharampal's case, : 1993CriLJ1049 and also in Simrikhia's case, , cited supra. The observations by Sawant, J., in Dharampal's case and by Fatima Beevi, J., in Simrikhia's case which have been emphasised by me in this judgment earlier can be said to be practically identical with the observations in Amarnath's case.
11. The controversy regarding the scope and the powers under section 482 as also regarding the true and correct interruption of the term 'interlocutory order' came up before the Supreme Court in Madhu Limaye's case reported in : 1978CriLJ165 , Madhu Limaye v. State of Maharashtra. Amar Nath's case (cited supra) was threadbare considered in Madhu Limaye's case and ultimately Untwalia, J., who was also the part of the Bench which decided Amar Nath's case explained the law laid down in Amar Nath's case. Untwalia, J., held that two points were decided in Amar Nath's case and they were,
'(1) While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-section (2) of section 397 of 1973 Code, the inherent powers contained in section 482 would not be available to defeat the powers contained in section 397(2).
(2) The impugned order of the Magistrate, however, was not an inter-locutory order.'
In paragraph 7, the Supreme Court proceeded to observe;
'For the reasons stated hereinafter, we think that the statement of the law apropos point No. 1 is not quite accurate and needs some modulation. But we are going to reaffirm the decision of the Court on the second point.'
The Apex Court, therefore, clearly was of the opinion that the law stated in Amar Nath's case was required to be restated. It was stated in the following terms in paragraph 10:
'On a plain reading of section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of section 397 also, 'shall be deemed to limit or affect the inherent powers of the High Court'. But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunicated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an inter-locutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly.'
It was, therefore, clear that in the above mentioned case, the Supreme Court carved out a place for the exercise of power under section 482 even in case of interlocutory orders. It felt that where such interlocutory orders amounted to an abuse of process of Court, or where those orders spelt out clear injustice, then the High Court was well justified in using its powers under section 482. The rigour of the statement of law made in Amar Nath's case regarding absolute bar against the High Court exercising its inherent jurisdiction was thus watered down and explained and those grey areas where it was permissible for the High Court to exercise its inherent jurisdiction were also highlighted by the Supreme Court in Madhu Limaye's case. According to Shri Manohar, though the order which is passed under the provisions of section 451 of Criminal Procedure Code in this case is undoubtedly an interlocutory order, yet the said order can be clearly covered in the exception carved out by the Supreme Court in Madhu Limaye's case. What he means to urge is that the present impugned order amounts to a clear abuse of process of Court and spells out absolute injustice against the petitioner, and therefore, this Court would be well justified in using its powers under section 482.
12. Shri Manohar, thereafter, pointed out that the decision of Madhu Limaye's case was thereafter considered by the Supreme Court in Raj Kapoor's case, : 1980CriLJ202 . In paragraph 10, V.R. Krishna Iyer, J., observes ;
'The first question is as to whether the inherent power of the High Court under section 482 stands repelled when the revisional power under section 397 overlaps. The opening words of section 482 contradict this contention because nothing in the Code, not even section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of section 482. Even so, a general principle pervades this branch of law, when a specific provisions is made easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In Madhu Limaye's case, : 1978CriLJ165 , this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in section 397(2).'
The Court then went on to quote the paragraph from the judgment of Madhu Limaye's case and proceeded to hold in the same paragraph;
'In short, there is no total ban on the exercise of inherent power where abuse of the process of the Court or other extraordinary situation excites the Court's jurisdiction. The limitation is self-restraint, nothing more.'
13. The matter thereafter came to be considered in Delhi Municipality v. Ram Kishan, A.I.R. 1993 S.C. 67. The verdict in Madhu Limaye's case was upheld and followed by the Supreme Court again quoting paragraph 10 from Justice Untwalia's judgment in Madhu Limaye's case. Even the judgment in Raj Kapoor's case was referred to and followed. The Division Bench of this Court also followed this law in Shyamrani v. State of Maharashtra, reported in 1990 M.L.J. 795. In short, the law laid down in Madhu Limaye's case which modified and modulated the verdict handed down in Amar Nath's case has become final. It is to be remembered that Madhu Limaye's case was decided by a Bench consisting of three Honourable Judges. In that light, when the decisions in Dharampal's case, : 1993CriLJ1049 and in Simrikhia v. Dolly Mukherjee's case (cited supra) are seen, it will be found that both the decisions are by the Benches consisting of two Honourable Judges.
14. In both the judgments, let us first consider the judgment of Dharampal v. Smt. Ramshree, : 1993CriLJ1049 . This was a case where the Court was concerned with the question of attachment of a property under the provisions of sections 145 and 146 of the Code of Criminal Procedure. In paragraph 4, the Court has found that the Sessions Judge therein had committed a patent mistake in entertaining a revision application against the fresh orders of attachment and granting interim stay when he had dismissed the revision application against the order of attachment also. The Court found that the first respondent had preferred a criminal application to the Sessions Court against the order passed by the Magistrate on 17-10-1978 withdrawing the attachment and the Sessions Judge had in fact dismissed the said application on 14-5-1979. Thus, the application filed before the High Court was in the nature of a second revision at the instance of one and the same party and therefore barred under section 397(3) Criminal Procedure Code. It was in that light that it was stated that the inherent powers under section 482 cannot be utilised for exercising the powers which are expressly barred by the Court. In fact, there is no reference made to either Madhu Limaye's case or Raj Kapoor's case or the last case of Delhi Municipality v. Ram Kishan, A.I.R. 1993 S.C. 67, wherein the law on the powers under section 482 was modulated and further explained. There is a striking similarity in the observations in Amar Nath's case and it is certain that the law laid down in Amar nath's case was thereafter modulated and modified by the Supreme Court in Madhu Limaye's case which law came to be followed in two more decisions. Shri Manohar, therefore, argues that the absolute bar against the user of inherent powers spelt out in Dharampal's case cannot be pressed in the present case in view of the law laid down in Madhu Limaye's case, and it would not be possible for this Court to follow Dharampal's case, as Dharampal's case is decided by a Bench consisting of two Honourable Judges. He contends that the law stated in Dharampal's case is in general terms regarding the tenability of a petition under section 482 of the Code of Criminal Procedure.
15. Shri Manohar also makes the same comment about the law laid down in Simrikhia's case (cited supra) and contends that it was altogether under different circumstances that the statement has been made regarding powers of the High Court under section 482. He points out that the Court was concerned with the powers under section 362. According to Shri Manohar, the law laid down in Simrikhia's case and the general statement of law regarding the powers under section 482 should be restricted to the facts of that case, as the reliance was led on the reported decision of Supreme Court in : 1981CriLJ296 , Sooraj Devi v. Pyare Lal. According to Shri Manohar, in Simrikhia's case, the Supreme Court was not considering the general power under section 482 and was not considering the effects of the bar under section 397(2). Considering the facts of Simrikhia's case, it will have to be observed that Shri Manohar is right when he says that the observations in this case in paragraph 6 are strictly in relation to the bar created under section 362 and in fact the statement of law in paragraph 6 relating to inherent powers is really restricted to the bar under section 362. Even in Simrikhia's case there is no reference made to either Madhu Limaye's case or Raj Kapoor's case or for that matter even the third case of Delhi Municipality.
16. Shri Manohar, therefore, submits that firstly, these two cases viz. Dharampal's case and Simrikhia's case have to be restricted to the facts in those cases and secondly the law laid down being in variance with Madhu Limaye's case, this Court should follow the law laid down in Madhu Limaye's case to hold that the petition under section 482 filed in this case shall be maintainable and it would be open for this Court to interfere with the order impugned though interlocutory in nature.
17. In fact, in both the cases i.e. in Dharampal's case and Simrikhia's case it was not shown to the Court that the order amounted to an abuse of process of Court or amounted to a clear injustice. The Supreme Court did not in those cases consider the impugned orders in the light of those averments. The Supreme Court was not considering the question as to whether the powers under section 482 were available against the interlocutory orders which spelt out pure injustice and which could be termed as an abuse of the process of Court. In either of the cases the Supreme Court has not considered the impugned orders from this angle. It is indeed true that where any order which is sought to be challenged is merely an interlocutory order and nothing more in the sense that it does not amount to an abuse of the process of Court or does not spell out an injustice, the inherent power of the High Court shall not be available to assail such order. That is the gravamen of the law laid down in Madhu Limaye's case as also in Raj Kapoor's case. The observations by Untwalia, J., in paragraph 10 of Madhu Limaye's case aptly show the precise scope of the power under section 482. It has been stated in that case that if the powers under section 482 were to be used as alternative powers to section 397(2), then the Court would be setting at naught a precise bar provided by the Code. The Court was at pains to point out that the inherent power was not meant for merely revising an interlocutory order. It was pointed out by the Court again and again that where such order amounted to an abuse of the process of the Court or it spelt clear injustice, the Court's inherent power would be still available. In that event, merely because the impugned order is an interlocutory order, the High Court will not find itself unable to remedy the injustice. In both these cases, such is not the position and it has not been shown or contended before the Court that the impugned orders amounted to an abuse of the process of Court or even for that matter they spelt injustice in any manner. In that view of the matter, it will have to be held that the general observations made in these two cases viz. Dharampal and Simrikhia's case would not apply to the case where the impugned order though inter-locutory in nature amounts to an abuse of the process of Court and also spells out injustice to the concerned party which would be necessary to be remedied.
18. Even otherwise, Shri Manohar argues that the law as to what course should be adopted by the subordinate courts in case there are conflicting judgments of Apex Court is more or less settled. We will have to however remember that we are faced in this case with a situation where the contrary judgments in Dharampal's case and Simrikhia's case are handed down by the Benches consisting of two Honourable Judges while Madhu Limaye's case has been decided by a larger Bench which is ultimately followed in at least two more cases. In : (1977)ILLJ200SC , State of Uttar Pradesh v. Ram Chandra, the Apex Court holds that where the High Court found any conflict between the views expressed by the larger and smaller Benches of the Supreme Court, the High Court cannot disregard or skirt the views expressed by the larger Benches. The proper course for the High Court in such case was to try to find out and follow the opinion expressed by larger Benches of Supreme Court in preference to those expressed by smaller Benches of the Court which practice had hardened into a rule of law and which is the practice followed by the Supreme Court itself. In : [1975]1SCR127 , Mattulal v. Radhe Lal, in paragraph 11, the Supreme Court chose to follow the decision in Sarvate T.B. v. Nemichand, 1966 M.P.L.J. 26 in preference to Kamla Soni v. Rup Lal Mehra, A.I.R. 1969 N.S.C. 186, as the decision in Sarvate T.B.'s case was of a larger Bench than the latter. Again in A.I.R. 1989 S.C. 1973, Union of India v. Raghubir Singh, the Supreme Court proceeded to hold that the law laid down by the Division Bench of Supreme Court is binding on the Division Bench of the same or a smaller number of Judges. In : [1989]3SCR901 , N. Meera Rani v. Government of Tamil Nadu, the Supreme Court observed that, all subsequent decisions which are cited have to be read in the light of the earlier Constitution Bench decision since those were the decisions by the Benches comprised of lesser number of Judges. The Supreme Court further observed, that it was obvious that none of the subsequent decisions could have intended taking a view contrary to that of the Constitution Bench in the earlier referred case. It will not be necessary for me to refer to any other case in view of these direct pronouncements of the Apex Court. But this subject was considered even in following cases they being : (1988)1CALLT1(HC) , Bholanath v. Madanmohan, wherein the question was the preference of the law laid down by the different Supreme Court Benches. The Full Bench has held in that case that the first course to be adopted by the High Court was to ascertain which one of them is decided by a larger Bench and to be governed by the larger Bench decision, if any. Justice A.M. Bhattacharjee, as he then was, speaking on behalf of the Full Bench has pointed out that this rule of law was laid down by the Supreme Court itself in a series of decisions and must be taken to be the settled law and for that purpose, the reliance was led on the case reported in : (1977)ILLJ5SC , Union of India v. K.S. Subramaaniam. In : (1989)91BOMLR951 Anant v. State of Maharashtra, the Division Bench of this Court has reiterated the same position and has held that in case of contradictory judgments on the same point decisions of a larger Bench is binding though it may not be later in point of time. The Court had relied upon the decision by the Supreme Court in : [1975]1SCR127 (cited supra) and had distinguished Javed Ahmad v. State of Maharashtra, : 1984CriLJ1909 . It has been held by the Division Bench that the decision of Javed Ahmad's case was of no relevance because in Javed Ahmad's case, the point was about the binding nature of earlier precedent of the Supreme Court on the Supreme Court itself and not the subordinate courts. Though the full context of the judgment is not available, the Full Bench of Andhra Pradesh High Court in : 1993(3)ALT471 , Sakinda Hari Nath v. State of Andhra Pradesh and others, has adopted the same course. Thus, it is more or less established and settled position of law that even where there are conflicting judgments of the Apex Courts, the judgment of the larger Bench becomes a binding precedent in preference to the judgment of the Bench comprising of lesser number of Judges. Though in Simrikhia's case and Dharampal's case the conflict handed down cannot be strictly stated to be contradictory and conflicting to the verdict handed down in Madhu Limaye's case, there can be no escape from the fact that in these two cases, the Supreme Court had spelt out an absolute bar to the exercise of jurisdiction under section 482 of the Code of Criminal Procedure, while in Madhu Limaye's case, the said absolute bar was modulated and modified, and further guidance was given as to under what circumstances the inherent powers could be exercised in the barred areas of the Code.
19. Therefore, if the powers under section 482 are to be exercised, it will have to be first established that the order in challenge amounts to an abuse of the process of Court or spells out a clear injustice to the party concerned. If that is so, then as held in Madhu Limaye's case and followed latter by the Apex Court in two more judgments, the bar cannot be held to be an absolute bar as spelt out in Simrikhia's case and Dharampal's case.
20. We will have, therefore, to examine in this case as to whether the impugned order is such an order as would amount to an abuse of process of Court and also spell out clear injustice.
21. Shri Manohar pointed out that there was an agreement of hire purchase in between the parties. He also pointed out that there is no denial of fact that the hirer had defaulted to make the payments of the monthly instalments. He has pointed out factually that such defaults are right from March 1993. In fact, according to him, no payment has been made after March 1993 at all. He also points out from the conditions of the hire purchase agreement which is on record that on default of the payment of instalments, the possession can be forthwith recovered by the petitioner Company. Shri Manohar relies on Clause Nos. (iii) and (iv) and Condition Nos. 4, 6 and 7. There is no serious dispute to this fact that the hirer had fallen in arrears and had defaulted to make the payments of the instalments. Shri Agasti, the learned Counsel appearing on behalf of the non-applicant No. 2 points out that it was because of the strike of the transporters that the payments were not made. In this argument, there is at least one admission that the payments were in fact not made, giving right to the Company to recover the possession of the vehicle. Now as regards the possession of the vehicle, it has come on record through the affidavit and otherwise that the said possession was taken by the representative of the petitioner company on 2-11-1993 at Bhandara which was about 60 Kilometers away from the place where the murder took place. It is, therefore, certain that the company had, in pursuance of the agreement, recovered the possession of the truck and in fact the truck was being driven not by the driver of the hirer, but by the driver of the company. It is the prosecution case as contended by the learned Public Prosecutor that because of this, the said truck was faulted near the octroi post of Nagpur Corporation and the driver who was driving the truck was murdered in pursuance of that murderous assault. Now, therefore, it is certain that the truck owner or the hirer of the truck had lost the possession of the truck at Bhandara. So much so, that the distance between Bhandara and Nagpur was covered by the truck which was being driven not by the hirer's driver, but by the company's driver. If in pursuance of the agreement of hire purchase, the possession of the truck was already lost by the hirer to the company, the only way by which the hirer could retrieve back his possession is through the agency of any Civil Court having jurisdiction to do so. That certainly would have been a civil dispute. However, it seems that the hirer thereafter chose to file an application under section 457 of the Code of Criminal Procedure and significantly suppressed the fact that he had lost the possession in pursuance of an agreement to which he was a party. He also suppressed the information that in fact he had hired the truck from the company and had not paid the full instalments thereof, and therefore, the company had in fact recovered the possession from him. All these material facts were completely suppressed by the hirer and in addition to that he painted himself as the rightful owner on the basis of the documents of the truck. It is an established position of law that merely because the truck is registered in somebody's name, that does not cloth the person concerned with the ownership. Registration is afterall only for the purpose of fixing the liability on the person to pay the tax. Registration may follow the ownership but the ownership does not follow registration. Therefore on the basis of the documents alone, the hirer could not have painted himself as an owner. He chose to do so precisely that. Again, since by that time, the petitioner company or its representative were not in picture, they were never noticed, nor heard. The investigating agency also was in complacent slumber when it recorded its No Objection to the truck being handed over to the hirer. It is thus clear that the hirer, who in law was not entitled to retrieve the possession of the truck unless he had taken recourse to the Civil Court had hoodwinked the whole procedure and had chosen to file an application before the Criminal Court of Magistrate and was able to get the possession back through the agency of the Criminal Court. This itself amounted to gross abuse of the process of Court. The retrieving of the possession back to the hirer amounted to the injustice, pure and simple, against the company, which had in fact retrieved the possession back and had brought the truck to Nagpur. Once the possession was taken on the basis of the agreement itself, it could not have been deprived of the possession of the truck even without it being heard. Before passing the order, the Magistrate should have gone into the police papers and should have seen as to what the prosecution case was. The prosecution case undoubtedly was that the possession of the hirer was lost to the company and it was the company's driver who had driven the truck to Bhandara. Under such circumstances before passing any order, the Magistrate should have at least chosen to notice the company. The searching look to the police papers would have enabled the Magistrate to see that in fact the truck was hired one and that its possession was taken by the company as the hirer had defaulted to make the payments. The learned Magistrate has not bothered to look into all these aspects and straightway proceeded to pass an order in favour of the hirer.
22. The position could have been further improved when the petitioner company made an application in the nature of an objection. Then at least, the facts were known. The sole ground on which the application has been thrown is obviously not relevant to the controversy. All that the Magistrate has mentioned is that this was a dispute of civil nature and that the company should establish its claim is the Civil Court. Such cannot be the approach. In : ILR1993KAR61 , Shriram Transport Finance Company Limited v. Khaishiulla Khan, the Division Bench of the Karnataka High Court has taken the view that the solemn agreements between the financer and the hirer should not be brushed aside by taking recourse to section 2(3) of the Motor Vehicles Act, 1988. If there was a default by the hirer leading to seizure of the vehicle, the courts should give effect to the agreements without encouraging the open breach thereof. The Court has further held that it was the duty of the financer to prima facie establish the hire purchase agreement, the defaults and the right of seizure. But once such duty was fulfilled by the financer then it was the duty of the Criminal Court to satisfy itself regarding the rights and liabilities under the Agreement. I respectfully agree with the law laid down in this decision.This was also a case where the financer had recovered the possession of the concerned vehicle and on the possession having been lost the hirer had reported the theft of that vehicle. In an application under sections 451 and 457 for the interim custody, the trial Court granted the custody in favour of the hirer. It was on the back drop of these facts that the Division Bench had held and laid down the law as stated above. There can be no dispute that in present case also the agreement of hire purchase was grossly abused by the hirer by making the defaults and then when in pursuance of that agreement the company retrieved back the possession, the hirer used the agency of the Criminal Court to take back the possession without reference to the clauses in the agreement. This certainly amounted to an abuse of the process of the Court. In not hearing the Company, the learned Magistrate also inflicted injustice which is liable to be corrected by this Court under its powers under section 482 of the Code of Criminal Procedure.
23. In view of the facts stated above, in fact the proper person to have the interim custody of the vehicle would be the petitioner and not the non-applicant No.2, as has been held by the Magistrate. This order which is impugned is not merely an inter-locutory order so that it cannot be challenged under section 482, there being an absolute bar under section 397(2). This besides being an inter-locutory order has been an unjust order amounting to the abuse of the process of the Court, and therefore, it would not only be proper but necessary for this Court to exercise its inherent jurisdiction under section 482 of the Code of Criminal Procedure. In that view of the matter, the following order is passed.
24. The petition is allowed. The impugned order is set aside and the application filed by the petitioner for the custody of the concerned truck is granted. The truck be handed over to the custody of the petitioner company and for that purpose the matter is remanded back to the Chief Judicial Magistrate. If necessary, the police help shall be given to retrieve the custody of the concerned vehicle. The parties are given one month's time for the compliance of this order.