ORDER
1. This revision is directed against the order dt. 23-8-1985 passed by the Metropolitan Magistrate, IV Court, Bangalore City, Whereby he has while rejecting the application made by the petitioner has allowed the application made by the respondent M/s. Sangeetha Auto Finances and directed to entrust interim custody of the vehicle in the question to him on his executing solvent surety binding himself to produce the vehicle before the Court as and when directed to do so and to kept the vehicle in good road-worthy condition, pending disposal of the criminal case.
2. The order is one purporting to have been made under S. 457 Cr.P.C. in relation to the Lorry bearing No. MED 5447 of which the petitioner Mr. Syed Hafeezulla Pasha son of Pacha Saheb is admittedly the registered owner, as provided under the Motor Vehicles Act. On the complaint of one Syed Ismail, said to be the driver of the vehicle, working under the petitioner, that on 21-12-1984 when the lorry was parked near Bharath Talkies, it had been stolen away by some three unknown person, the Police of Kalasipalyam Police Station registered a case in Crime No. 872/84 and took up investigation. During investigation, on 22-12-84, when the lorry in question was found parked at the premises Universal Enterprises, Subbaiah Garden, Bannerghatta Road, Bangalore, the same was seized and produced before the Magistrate. On 26-12-1984, the petitioner made application before the Magistrate for interim custody of the vehicle on the ground that he being the absolute and registered owner of the vehicle he was entitled to the possession thereof and he was prepared to produce the vehicle before the police or before the Court when directed to do so. On 27-12-1984, the respondent-firm also made an application for entrustment of the custody of the vehicle contending, inter alia, that the petitioner herein took the possession of the vehicle on hire purchase agreement with the firm; he was required to pay a sum of Rs. 1,07,100/- in 30 monthly instalments; he paid only some instalments and committing default in payment of the instalments becoming due from March, 1984 onwards and in spite of the repeated demands when he failed to pay the firm had re-possessed the vehicle in terms of the hire-purchase agreement; and the firm being the owner of the vehicle, it is entitled to the interim custody of the same. The hire purchase agreement and receipts regarding payment of insurance premium and the letters said to have been sent by the petitioner were also produced.
3. Although it would appear that the petitioner contended that there was no hire purchase agreements as such and there was only a loan transaction, and several decisions of this Court and decisions of other High Courts were referred to before the Magistrate, without properly applying the mind to the consideration of the questions relevant while making the interim custody of the vehicle, he being of the view that there was such a hire purchase agreement between the petitioner and the respondent, the petitioner having committed default in payment of hire purchase instalments in terms of the hire purchase agreement, the respondent-firm had re-possessed the vehicle and the respondent having invested huge sum on the lorry and considerable sum still being due from the petitioner it was, therefore, just and proper to entrust interim custody to the respondent firm, having made the order, the petitioner has approached this Court.
4. Mr. Nagesh learned counsel for the petitioner, argued that the Magistrate has not only failed to follow the various decisions of this Court cited before him, but has also come to a wrong conclusion that the petitioner had taken possession of the vehicle and held that same on hire purchase agreement with the respondent-firm. He submitted, the vehicle in question stood in the name of one Mr. Shenoy as a registered owner on hire purchase agreement with Syndicate Bank, and it was then transferred to the petitioner on 31-8-1981 and therefore the question of the petitioner taking possession of the vehicle on hire purchase agreement with the respondent-firm did not at all the arise. May be the respondent had financed the purchase of the vehicle by the petitioner, but it cannot be regarded as owner either under the general law of Sale of Goods Act, or under the provisions of the Motor Vehicles Act, in the absence of any material produced to show that the vehicle was at any time transferred to and was standing in the name of the respondent-firm as its registered owner, and the Magistrate has failed to notice this aspect of the case and has come to a wrong conclusion. He also submitted, whether the respondent-firm had re-possessed the vehicle as claimed by it or not could have properly been gone into only when all the materials were placed before the Court, after the police had sent up a report, and to say so before the police had sent a report would be pre-judging the issue and, therefore, the view taken by the Magistrate in making the order entrusting interim custody of the vehicle to the respondent-firm is wholly erroneous and the order under revision therefore deserves to be set aside and the application of the petitioner deserves to be allowed, and in consonance with the consistent decisions of this Court the interim custody of the vehicle deserves to be entrusted to the petitioner.
5. Mr. Datar, learned counsel, appearing for Mr. Gupta, on behalf of the respondents-firm, however arguing supporting the order made by the Magistrate submitted that the Magistrate has not committed any error in doing so since the letter dt. 11-1-1985 produced by the respondent-firm clearly showed that the petitioner had admitted repossession of the vehicle by the respondent and the respondent having taken possession of the vehicle owing to default committed by him can very well have a fresh certificate of the registration in its name and put the vehicle to use and, therefore, the object of making the order regarding interim custody being mainly to see that mechanically propelled vehicles are not kept idle, lest damaged or wasted, there is no need or necessity of interfering with the order under revision.
6. But, I do not think, while dealing with such applications of rival claimants for interim custody of motor vehicles seized by the police in a criminal case and produced before the Court, the Magistrate, is at all called upon and required to settle the dispute of ownership of the vehicle as between the rival claimants and then make the order regarding the interim custody of the vehicle so seized and produced before the Court in a criminal case; because there may be verities (?) of claims and disputes regarding the ownership of the particular vehicle. It would also the improper for a Criminal Court to do so because that is essentially function of the Civil Court, particularly when the Magistrate is required to make a summary inquiry, in making a choice of selecting a proper person to whom the interim custody of the vehicle, pending final disposal of the case, has to be made. That is also beyond the scope of the limited inquiry to be made as provided under Ss. 451 and 457, Cr.P.C.
In the case of T. C. Gopalan Nair v. P. Kelu, (1973) 1 Mys LJ 420 : (1974) Cri LJ 210) as has been pointed out by this Court, the registration certificate is an essential necessity before, any such motor vehicle can be made use of and that any person in whose favour this certificate of registration is issued, obviously would be the owner thereof. In case of any transfer of ownership in respect of that the motor vehicle, the procedure is contemplated under S. 31 of the Motor Vehicles Act and till any such transfer of ownership is entered in the certificate of registration, one has to take it that the person in whose favour such a certificate of registration is issued by the Motor Transport Authorities is the owner and such a person is entitled to remain in possession of the vehicle. Non-compliance of certain provisions of the Motor Vehicles Act sometimes makes the owner responsible. In those circumstances, it would be ordinarily prudent and in consonance with the provisions of the Motor Vehicles Act to allow such a motor vehicle to remain in possession of such a person in whose name the certificate of registration stands. When the property regarding which an offence appears to have been committed or which appears to have been used for the commission of an offence is produced before any Criminal Court, during any inquiry or trial, the Court has got to make such order as it thinks fit for the proper custody of such property pending conclusion of the inquiry or trial. The power to order for custody of the property given to a Magistrate under the Code should not be used to determine the ownership of property. It is a matter strictly within the sphere of the Civil Court. That is not to say that in no circumstance the Criminal Court should go into the question of title or ownership of the property.
Although a Criminal Court is not a proper forum for determining such questions of ownership and title which are necessarily to be decided by Civil Courts, while deciding the question of entrustment of interim custody it may be permissible under S. 457, Cr.P.C. to determine who among the rival claimants is prima facie entitled to the possession and entrustment of the property, but complicated questions of title cannot be decided by a Criminal Court while dealing with such applications made for the interim custody either under S. 451 or S. 457, Cr.P.C. However, in so far as motor vehicles are concerned, since as provided under the Motor Vehicles Act every owner of the vehicle is in duty bound to have the same registered by the Registering Authority and, while registering, the motor, vehicle has to be produced before the Registering Authority and the Registering Authority registers and issues Registration Certificate only on satisfying himself regarding, the particulars of the ownership, the Certificate of Registration is primarily and ordinarily the evidence of ownership of motor vehicles. There is a strong presumption in favour of holder of Certificate of Registration that he is the rightful owner of the motor vehicle.
Although, as pointed out by this Court in the case of Kariyappa v. Sreekantaiah, (1980) 1 Kant LJ 332 : (1980 Cri LJ 422), when such property is produced before the Criminal Court it has got discretion to make such order as it thinks fit for proper custody of such order as it thinks fit for proper custody of such property pending conclusion of inquiry or trial, the question often before the Court is what would be the proper custody pending conclusion of such inquiry or trial. Hence, that discretion has also to be exercised judiciously and not arbitrarily. While making an order for interim custody of a motor vehicle, what the Criminal Court has to keep in view is, who would be the best person to make use of the vehicle pending conclusion of the enquiry or trial, because if a mechanically propelled vehicle is kept idle for a long time, not only there are chances of its being spoiled, but the person who is deprived of the possession of the vehicle is likely to be put to great loss, either by theft or otherwise. Under the Motor Vehicles Act, a registration certificate is essential before the vehicle is used on the road. Therefore, the person is whose favour the certificate of registration is issued or stands, ordinarily and obviously, is the proper person for the interim custody of the vehicle seized and produced in the Criminal Court. Of course, there may be cases where it may be permissible to entrust interim custody of the vehicle to a person not being a registered owner, where the person from whose possession the vehicle is seized was in lawful possession as in the case of Mangharam and Sons v. R. C. Morzaira, 1984 Cri LJ 1580 (Kant) and where the registered owner does not come forward or he has no objection for entrustment of the custody of the vehicle to some other, after weighing their respective claim to the possession thereof; but ordinarily proper and prudent course to be followed is to entrust the custody of the vehicle to a person who is the registered owner and holder of the certificate of registration.
7. As between the registered owner of the vehicle and the person with whom he has hire purchase agreement, merely because the one has invested money or has some stake in the vehicle, it may not be proper to entrust the custody of the vehicle to him; because these provision of Ss. 451 and 457 are not remedial providing a remedy about the risks involved. Although in such cases of hire purchase agreement (i) element of bailment and (ii) element of sale are present and sale is complete only when the option is exercised by the intending purchaser after fulfilling the terms of agreement yet, as pointed out earlier, the certificate of registration, if not a document of title, is primary and prima facie evidence of ownership. Therefore, strong evidence almost conclusive in nature must be made available before the registered owner of the vehicle is denied the interim custody of the vehicle since he is the prima facie owner entitled to possession thereof. It is usual in such cases the financier, with whom the registered owner of the vehicle has entered into a hire purchase, to come forward saying he has taken the possession of the vehicle in exercise of the right in terms of the agreement to re-posses the vehicle, just as it is usual with the hire purchaser to complain of the theft or robbery of the vehicle purchased under the hire purchase agreement; but while dealing with the applications made to the Court either under S. 451 or S. 457, Cr.P.C., it will be improper to express any opinion on these contentions when the matter is under investigation and/or the inquiry has not been completed. Therefore, as between the registered owner and the purchaser, irrespective of allegations or counter-allegations as to the theft or re-possession of the vehicle in default of payment of hire purchase installments, it is quite proper and practicable to entrust the interim custody of the vehicle to the registered owner, pending inquiry or trial; because it will be still open to the Court to make final order regarding the disposal after conclusion of the inquiry or trial. Since the vehicle produced before the Court is in the legal custody of the Court and only the physical custody is entrusted, pending final inquiry or trial, if ultimately it turns out that the person with whom the registered owner had hire purchase agreement has taken possession in due course in terms of hire purchase agreement, it is open to the Court to make proper order regarding disposal of the vehicle after the conclusion of the inquiry or trial. Therefore, merely because under S. 31(5) of the Motor Vehicles Act the certificate of registration of the vehicle is likely to be cancelled by the Registering Authority on satisfying that the person with whom he had hire purchase agreement had re-possessed the vehicle, it cannot be said that the Court should entrust the interim custody of the vehicle to him.
In the case on hand, no doubt with promptness, even before the vehicle was actually seized, a telegram has been sent to the Inspector by the respondent-firm intimating re-possession of the vehicle in terms of the agreement and it would also appear the petitioner had also addressed a letter, the correctness of which however is sought to be disputed, admitting such re-possession of the vehicle, but at the same time there is no denial of the fact that after investigating into the complaint lodged by Ismail, driver of the vehicle, and after completing the investigation, the police have also sent up a charge-sheet. Therefore, there being controversy as to the existence of the second hire purchase agreement, whether the respondent-firm could re-possess the vehicle or not are the questions which can properly be decided after conclusion of the inquiry or trial. The proper thing to do for the Magistrate was to entrust the custody of the vehicle to the petitioner, who is the registered owner and not to the respondent.
In the result and for the reasons stated above, the order under revision is liable to be set aside and it is accordingly set aside. The application of the petitioner is allowed and it is ordered that the vehicle bearing No. MED 5447 be entrusted to the custody of the petitioner Syed Hafeezulla Pasha on his furnishing adequate security before the Magistrate to the extent of the value of the vehicle undertaking to produce it before the Court whenever so required and to keep it in good road-worthy condition.
8. Revision allowed.