Judgment:
ORDER
S.C. Datta, J.
1. The petitioner has moved this Court in revision with a prayer to quash the proceeding in Misc. Case No. 48 of 1994 arising out of a petition under Section 94, Cr. P.C., files by the opposite party for recovery of his vehicle from the possession of the present petitioner on the ground that the said proceeding is bad in the eye of law.
2. The fact leading to the filing of the present application is that the opposite party is the owner of one truck bearing No. D.S.B. 1132, which was hypothecated to the United Commercial-Bank, Chowki Branch. He having failed to look after the affairs of the said vehicle properly approached the petitioner with the proposal to sell the same on condition that the petitioner would make a down payment of Rs. 1,44,000/- to the opposite party and the latter would forthwith hand over the possession of the vehicle together with R. C. Book and other documents and would allow the petitioner to operate the said vehicle. The ownership of the vehicle would, however, remain with the opposite party. It was further stipulated that out of the income so generated by operating the said vehicle, the petitioner would pay the outstanding amount due and payable to the Banker by the opposite party because of hypothecation. Accordingly, the petitioner made a down payment of Rs. 1,44,000/- to the opposite party and took possession of the vehicle in question and started operating the same. He also went on liquidating the loan to the Banker as stipulated. Subsequently, the dispute arose between the parties and the parties received the same and executed a registered document on 15-11-1993. The said agreement contained terms and conditions which were stipulated earlier orally between the parties.
3. While the said agreement was in force and the petitioner was operating the vehicle, the opposite party filed a petition under Section 94, Cr. P.C., out of which Misc. Case No. 48/94 has arisen praying to seize the said vehicle on the ground that the present petitioner was trying to sell the said vehicle to a third party much to the detriment of the opposite party. On the day of filing of the said petition, learned J.M.F.C, Jaleswar, by the impugned order dated 13-7-1994 granted the prayer and asked the Officer-in-charge, Bhograi Police-station to report compliance forthwith. Pursuant thereto the said vehicle was seized from the possession of the petitioner on 18-8-1994 and latter the learned Magistrate made over possession of the said vehicle to the opposite party on a zimanama on execution of a Bond.
4. Being aggrieved thereby i.e., making over possession of the vehicle to the opposite party, the present petitioner filed a Criminal Revision Case bearing No. 50 of 1994 before the Sessions Judge, Balasore, which was dismissed. According to the learned counsel for petitioner Section 94, Cr. P.C., is not applicable to the facts of the present case on the ground that the vehicle was neither a stolen article nor any objectionable item but it has come to the possession of the petitioner on the strength of a written agreement. It is submitted that the dispute between the parties is completely of a civil nature and as such, application under Section 94, Cr. P.C., is unwarranted and the impugned order is consequently perverse, bad in law and is, therefore, liable to be quashed.
5. Heard learned counsel appearing for the parties.
6. It appears that the opposite party is the owner of the vehicle in question. He has purchased the same on obtaining loan from the United Commercial Bank. The vehicle was, however, hypothecated to the Banker. Anyway, it appears that pursuant to an orai agreement, the said vehicle was handed over to the present petitioner on condition of making a down payment of Rs. 1,44,000/- and on further stipulation of liquidating the loan of the Banker together with interest and other charges by instalments. The petitioner was operating the vehicle when the opposite party filed an application under Section 94, Cr. P.C., praying to seize the vehicle from the possession of the petitioner on the ground that he is trying to dispose of the same to a third party. It appears that on the date of filing of the petition itself, the learned Magistrate, passed the impugned order without any notice to the petitioner directing the Officer-in-Charge, Bhograi Police-station to seize the vehicle immediately and to keep the same in his custody and report compliance forthwith. He had issued search-warrant to that effect on the same day. It is not disputed that in pursuance thereof the vehicle was seized by the Police and later the said vehicle was made over to the opposite party in zimanama on execution of a bond. It is accepted that the present petitioner had filed a revision once before the learned Sessions Judge, Balasore, against the order of the learned Magistrate making over the possession of the vehicle to the opposite party. It is not disputed that the said revision application has since been disposed of by the learned Sessions Judge, Balasore and the order of the learned Magistrate making over possession of the vehicle to the opposite party has been confirmed. The said order of the learned Sessions Judge has not impugned in the present revision application. In the' present case, the limited prayer of the petitioner is for quashing of the proceeding under Section 94, Cr. P.C., out of which, Misc. Case No. 48 of 1994 before the learned Judicial Magistrate First Class, Jaleswar arose. It is evident that the said Misc. case ended with the search and seizure of the vehicle and making over possession of the same to the opposite party. The learned counsel appearing for the opposite party submits that there is no proceeding pending before the learned Magistrate which require to be quashed. He submits also that the dispute between the parties is essentially of a civil nature for which the petitioner may seek redress in-proper forum. It is no doubt true that the dispute between the parties is essentially of a civil one and as such the power under Section 94, Cr. P.C., was not available to be exercised to deprive the petitioner's possession of the vehicle. The pre-conditions to be satisfied before a warrant is issued are that the Magistrate must have satisfaction that the place in respect of which search is directed is used for deposit or sale of stolen property. Unless the Magistrate has reason to believe that the place is being' so used, he would have no jurisdiction to issue search-warrant. It has been so held in a case reported in (1989) 2 OCR 233 (Desarathi Parida v. Satyabadi Pradhan). There is no dispute with regard to the proposition of law but the fact remains that the proceeding before the learned Magistrate culminated in the seizure and making over possession of the vehicle to the opposite party. The dispute between the parties is essentially of a civil one. Moreover, the petitioner has not sought to quash the order of the learned Sessions Judge confirming the order of the learned Magistrate making over possession of the vehicle in question to the opposite party. In view of the above circumstances. I am not inclined to interfere in this revision. The petitioner, if so advised, may seek his redress before a proper forum. With this observation, the revision application is disposed of.