JUDGMENT
K.S. Lodha, J.
1. Both these petitions Under Section 482 Cr. PC have been directed against the order of the learned Munsif and Judicial Magistrate, Deedwana, dated 15-2-1984 and, therefore, they can conveniently be disposed of by a single order.
2. The facts giving rise to these petitions briefly stated are that the bus No. RJH 1442 originally belonged to the petitioner Prakash Singh. He transferred it under the higher purchase agreement to one Mohan Lal. The registration certificate as also the route permit in respect of this bus were transferred in the name of Mohan Lal. Thereafter the non-petitioner No. 2 Abdul Rehman purchased this bus from Mohan Lal. However, the registration certificate or the permit were not transferred in his name when on 31-10-1982 Abdul Rehman sold this bus to the petitioner Banne Singh for a sum of Rs. 70,000/- out of which Rs. 25,000/- had been paid to him and a sum of Rs. 45,000/- remained due, which was to be paid by monthly instalments of Rs. 3,000/-. An agreement in this respect was reduced into writing on 24-2-1983,
3. On 7-2-1984 Banne Singh lodged a report at the police station Deedwana that on that date when the said bus was carrying passengers from Khadu to Deedwana, Abdul Rehman intercepted the bus on the way and forcibly took it away after giving beating to the driver and conductor. On this report, the police registered a case for offence Under Section 392 IPC and after investigations) put up a challan against Abdul Rehman and Habib,
4. The present petitioners Banne Singh and Prakash Singh as also the accused Abdul Rehman moved applications before the learned Magistrate Under Section 451 Cr. PC for the custody of the said bus, which had been taken possession of by the police. The learned Magistrate after hearing both the parties, directed by his order dated 15-2-1984 that the bus may be handed over to Abdul Rehman on the condition that he furnishes a Supurdginama in the sum of Rs. 70,000/- and also produces receipts for the payment of the whole tax due on the vehicle, its insurance certificate etc. and also furnishes a surety in the sum of Rs. 70,000/-. Aggrieved of this order, both the petitioners have come up before this Court.
5. It may be mentioned here that the non-petitioner Abdul Rehman was also aggrieved by a part of the order by which certain conditions were imposed upon him while directing the delivery of the bus to him: and he also filed an application Under Section 482 Cr. PC before this Court.’ The present petitioners were, however, not made parties to that application and by order dated 8-3-1984, this Court modified the order to the extent that the petitioner will not be required to submit tax clearance and certificate of insurance.
6. I have heard the learned counsel for the parties and have gone through the record.
7. It is contended by the learned counsel for the petitioners Banne Singh and Prakash Singh that the learned Magistrate was entirely wrong in directing the delivery of the bus to Abdul’ Rehman when he was being accused of an offence of Section 392 IPC and challan has already been filed against him and the court had taken cognizance thereof and vehicle could have been handed over only to the person who was in rightful possession thereof at the time of the alleged incident. The learned counsel for the petitioner Prakash Singh further urged that he was admittedly the original owner of the vehicle in whose name the registration certificate and the permit stood and whose amount under the hire purchase agreement with Mohan Lal is still outstanding, is the person best entitled to the possession of the vehicle. Whereas the learned counsel for Banne Singh urged that as the vehicle was in his possession when the accused Abdul Rehman had forcibly taken it away, its possession should have been handed over to him. On the other hand, the learned counsel for Abdul Rehman urges that when the vehicle has been seized from his possession, he is the best person to whom the vehicle should have been handed over and the learned Magistrate was justified in directing the delivery of the vehicle to him. It was also contended by him that the order passed by the learned Magistrate is only an interlocutory order and no interference with such an order is called for in exercise of the powers Under Section 482 Cr. PC.
8. I have given my careful consideration to the rival contentions.
9. At the very outset, it may be mentioned that although the powers Under Section 482 Cr. PC may not be exercised in respect of orders Under Section 451 Cr. PC but Where the Court finds that the order passed by the lower court is apparently erroneous and would amount to almost miscarriage of justice, its hands are not bound and can interfere with such an order.
10. In the present case, the fact that Abdul Rehman had entered into an agreement to sell this bus to Banne Singh and had also received a part of the sale consideration, is not in dispute. The fact that the bus had also been given in possesion to Banne Singh at the time of the agreement also stands Undisputed. It is also not disputed that the bus was taken away by the taccused Abdul Rehman while it was in the custody of Banne Singh. His case, however, is that it was with the consent of the driver and the conductor of the complainant Bunne Singh that he had taken away the bus on account of the non-payment of the instalments under the aforesaid agreement of sale. This question, of course, has to be considered on the merits at the trial of the case and I need not go into it at this stage in any detail. The learned Magistrate appears to have been led away by the fact that when the bus was transferred from Mohan Lal to Abdul Rehman, Mohan Lal had written to the transport authorities to transfer the registration in the name of Abdul Rehman whereas when Abdul Rehman transferred the bus to Banne Singh, no such step was taken and in these circumstances. Abdul Rehman should be deemed to be the persen entitled to the possession of the bus in question. In doing so, in my opinion, he has clearly fallen into an error because the question before him at present was not about the title of the bus but was only with regard to the ” possession and when admittedly the possession of the bus was with Banne Singh at the time he is alleged to ,have been deprived of the possession by the accused Abdul Rehman, the mere fact that the registration had not been transferred in his name was not enough to disentitle him to the possession of the bus. On the other hand, it clearly appears that the learned Magistrate has already taken cognizance of the offence against Abdul Rehman on the police report and by giving the bus in these circumstances to Abdul Rehman he has clearly put a premium on the alleged crime. Without adding to the length of this order, I may only refer to two decisions of this Court which are almost on all fours with the present case, namely, Kailash Chandra v. Parasmal 1981 RLW 260 and Makbool Khan v. The State of Rajasthan and Anr. 1983 Cr.LR (Raj.) 114.
11. Thus I am clearly of the opinion that the order of the learned Magistrate directing the delivery of the bus to Abdul Rehman cannot be maintained.
12. Now the question is out of the two petitioners who is better entitled to the custody of the bus and my answer naturally goes in favour of Banne Singh because admittedly Prakash Singh had already transferred the bus to Banne Singh and the registration and the permit had also been transferred in his name. Thereafter Prakash Singh did not take any steps for the disposal of the bus on account of the alleged outstanding instalments. Now at this stage, he cannot come forward under these proceedings to claim the possession of the bus. He can have his remedy before the civil court.
13. For the reason stated above, Prakash Singh’s application is rejected but that of Banne Singh is allowed. The order of the learned Munsif & Judicial Magistrate Deedwana dated 15-2-84 is set aside and it is directed that the bus in question shall be handed over to Banne Singh on his furnishing a supurdginama in the sum of Rs. 70,000/- and also giving a security in the sum of Rs. 19,000/- and his going on depositing in court a sum of Rs. 3,000/-month by month towards the amount of Rs. 20,000/-. These amounts shall be deposited from the month following the month in which the bus in question is delivered to the petitioners.
