A.S. Naidu, J.
1. The ICICI Bank conducted auction sale of a tractor and trolley on 30-1-2006. The offer of the petitioner being highest, the same was accepted. The petitioner paid a sum of Rs. 2,05,000.00 and Rs. 30,000.00 towards the cost of tractor and trolley bearing registration numbers OR-02-AE-2859 and OR-02-AE-2860 respectively and possession thereof was handed over to him. After taking over possession of the tractor and trolley the petitioner, it is submitted, spent an amount of Rs. 1,30,000.00 towards cost of repair thereof and cost of accessories to bring the same in running condition. He also deposited the required Road Tax with the RTO, Bhubaneswar and obtained receipts thereof.
2. While matter stood thus, on the basis of a complaint filed by present opposite party No. 2 the aforesaid ICC No. 719/06 was registered in the Court of the learned SDJM, Bhubaneswar which was subsequently registered as G.R. Case No. 1100 of 2006. It was alleged that though opposite party No. 2 had purchased the aforesaid tractor and trolley on hire-purchase agreement from the ICICI Bank, the latter without any justifiable reason or authority whatsoever forcibly took away the said tractor and trolley and unauthorisedly sold the same to the present petitioner.
3. In course of investigation the tractor and trolley in question were seized from the possession of the petitioner. The petitioner claiming to be a bona fide purchaser filed a petition under Section 457, Cr.P.C. before the SDJM, Bhubaneswar with a prayer to release the said tractor and trolley in his Zima. The learned SDJM on scrutiny of the materials available on record came to the conclusion that the same had been seized by the ICICI Bank from opposite party No. 2-complainant as he defaulted in repayment of the loan, which the Bank had the right to do. It was further held that in fact the investigating agency had seized the tractor and trolley in question from the custody of the present petitioner who had purchased the same for value from the Bank in an auction sale conducted by the Bank. On the basis of such conclusion the SDJM allowed the petition filed under Section 457, Cr.P.C. and directed that the seized tractor and trolley be released in the interim custody of the petitioner subject to his depositing Rs. 1,00,000.00 in Court and filing an indemnity bond for Rs. 2,00,000.00 incorporating the following conditions:
i) He shall produce the aforesaid vehicle (tractor and trolley) bearing registration No. OR-02-AE-2859 and OR-02-AE-2860 before the Court as and when directed by the Court;
ii) He shall not sell the aforesaid vehicle to any other person during pendency of the case;
iii) He shall not utilize the vehicle in any criminal activities;
iv) He shall not change the colour and model of the vehicle without prior permission of the Court;
Further the petitioner shall produce four colour photographs of the aforesaid vehicle No. OR-02-AE-2859 and OR-02-AE-2860 from different angles for which the IIC, Lingaraj P. S. shall accord permission.
In addition to the above conditions the petitioner shall furnish a bond of Rs. 2,00,000.00 with one solvent surety for the like amount.
4. Being aggrieved by the said order, two Criminal Revisions were filed before the Sessions Court, one by the complainant-opposite party No. 1, i.e. Criminal Revision No. 16/29 of 2006 inter alia challenging the direction to release the tractor and trolley in favour of the petitioner; and the other being Criminal Revision No. 17/28 of 2006 filed by the petitioner challenging the direction of the SDJM to him to furnish cash security of Rs. 1,00,000.00. Both the revisions were heard and disposed of by the Addl. Sessions Judge, FTC No. II, Bhubaneswar. The Addl. Sessions Judge after discussing the materials came to the conclusion that as the R. C. Book still stood in the name of the complainant-opposite party No. 2 and the question of propriety of the seizure thereof by the Bank was still subjudice, the SDJM had acted illegally in directing release of the tractor and trolley in favour of the petitioner and reversing the order of the SDJM he directed release of the tractor and trolley in favour of the complainant-opposite party No. 2 who was found to be the original owner thereof. The said order of the learned Addl. Sessions Judge is impugned in the CRLMC invoking Inherent jurisdiction of this Court under Section 482, Cr.P.C.
5. It was submitted that the petitioner was a bona fide purchaser and in fact the tractor and trolley in question had been seized by the ICICI Bank for non-repayment of the loan by the complainant-opposite party No. 2 which the Bank had the authority to in consonance with the agreement between the Bank and complainant-opposite party No. 2. It was also submitted that the Bank had conducted an auction sale inviting quotations and as the quotation of the petitioner was accepted he made down payment of Rs. 2,35,000.00 and possession of the tractor and trolley was handed over to him. He had absolutely no knowledge and/or any nexus with the Bank or the complainant-opposite party No. 2 who claimed to be the first purchaser. It was further submitted that if the Bank had made the aforesaid seizure unauthorisedly, it was open to opposite party No. 2 to proceed against the Bank claiming compensation. It was further submitted that after taking over possession of the tractor and trolley, the petitioner had spent huge amount for repairing the same and bringing the same to running condition and he had also spent huge money for purchasing accessories, payment of Road Tax, etc. and while peacefully possessing the vehicles the same were seized by the investigating agency from him. Learned Counsel for the petitioner further submitted that as the petitioner spent huge money, the direction of the SDJM to deposit a sum of Rs. 1,00,000.00 was too high amount and it is a fit case where the amount of deposit directed to be made should be suitably reduced. He also submitted that the order of the revisional Court may at the same time be quashed.
The submission of the learned Counsel for the petitioner is strongly repudiated by the learned Counsel for complainant-opposite party No. 2. According to him the complainant-opposite party No. 2 was the first purchaser. The R. C. Book stood in his name. While he was the owner the learned SDJM had acted illegally in directing release of the tractor and trolley in favour of the petitioner. He further submitted that seizure of the aforesaid vehicles made by the Bank was illegal and without any authority and even if for the sake of argument it was conceded that there was any delay in repayment of loan by the complainant-opposite party No. 2, it was open to the Bank to realize the amount due to it by initiating appropriate proceeding in consonance with law, and rightly the revisional Court has directed to release the tractor and trolley in interim custody of the complainant-opposite party No. 2.
6. I have heard learned Counsel for the parties at length.
Section 457 of the Code of Criminal Procedure stipulates that during inquiry or trial the Magistrate may release a property in the interim custody of the person who is entitled to possession thereof. Thus the paramount requirement of law is now the ownership of the vehicle, but the person who is otherwise entitled to remain in possession thereof. In the case at hand, admittedly the ICICI Bank had held an auction sale of the tractor and trolley and the petitioner was the bona fide purchaser thereof having paid its price. He had also spent huge amount towards repair of the vehicles, purchase of accessories and depositing arrear Road Tax before the concerned RTO. It was submitted that on an application being filed by the petitioner before the ICICI Bank, the ownership of the vehicles had been changed. But then all these facts are to be considered during trial of the aforesaid G.R. Case or any other suitable proceeding that may be initiated by the parties. At this stage the only question needs consideration of this Court is who among the two claimants is entitled to interim custody of the vehicles in question. While deciding this question the Court need not decide the ownership of the vehicles. That apart, in the case of Sunderbhai Amballa Desai reported in 2003 (24) OCR 444 : AIR 2003 SC 638, the Supreme Court has held that the power of a Magistrate can be exercised regarding interim custody and disposal of valuable property in course of trial. It has also been held that such power should be exercised promptly and judiciously and the article should not be kept in police custody for more than fifteen days to one month. On the basis of ratio of the said decision of the Supreme Court and considering the facts and circumstances of the case at hand, this Court holds that the petitioner is entitled to interim custody of the tractor and trolley in question which had in fact been seized from his possession by the investigating agency. He had purchased the said vehicles by paying the value thereof, had cleared the arrear Road Tax etc. and had also spent huge amounts towards purchase of accessories and repair of the said vehicles.
7. The only question that needs to be considered is as to what should be terms and conditions to be imposed while directing release of the vehicles in interim custody for securing the same. After going through the order of the SDJM, this Court finds that the conditions imposed by the SDJM are just and proper and need no modification. But then considering the submission that the petitioner had spent huge sum of money towards repair of the said vehicles, purchase of accessories, payment of arrear Road Tax, besides paying the value of the said vehicles while purchasing on auction sale, this Court directs that instead of depositing cash of Rs. 1,00,000.00 the petitioner shall furnish bank guarantee for the like amount which he shall renew time to time until disposal of the aforesaid G.R. Case pending before the trial Court. The order of the revisional Court is quashed. The CRLMC is, accordingly, disposed of.