JUDGMENT
G.D. Kamat, J.
1. By this petition under Article 227 of the Constitution of India and under section 482 of Criminal Procedure Code the applicant seeks to get the order made by Judicial Magistrate First Class, Mapusa, dated 15th January, 1985 granting possession of a Motor Vehicle bearing No. MWU 2789 to the respondent No. 2 quashed and set aside. By that order the Judicial Magistrate, First Class directed the applicant to produce the said truck before the Court within 10 days from the date of the order and hand it over to the respondent No. 2.
2. When this matter came for admission, rule was granted and status quo was ordered.
3. From the stances taken by the parties it would be convenient to state facts. On 11th June, 1984 the applicant through his representative filed a complaint against the first respondent at the Mapusa Police Station that respondent No. 1 had removed the truck unlawfully and committed theft of the same. Hence the F.I.R. disclosed an offence under section 379 of Indian Penal Code. It is averred in the petition that the applicant is a proprietor of Yesh Constructions, Bombay and as such the owner of that truck bearing No. MWU 2789, that the respondent No. 1 after introducing himself through one Mr. M.D. Shah, a finance broker of Bombay, representing that he is the Managing Director of M/s. Dahej Minerals Ltd., owning mining concessions in Goa. For that matter some documents were shown which were in Portuguese purporting to be the concessions in relation to mines and that on account of some litigations the respondent No. 1 was in financial difficulties. It is then averred that from time to time large sums of money were given by the applicant to the first respondent totalling to Rs. 1,30,000/-; next on 17th November, 1983 the first respondent also requested the petitioner to give him the said truck on hire basis for the purposes of mining operations and believing in the representations made the petitioner gave his truck to M/s. Dahej Minerals Ltd. for one month only. No hire charges were paid nor the truck was returned and on 13th February, 1984 the first respondent informed the petitioner that the truck had met with an accident and the same has been removed to the garage for repairs. The some time in March 1984, the first respondent alongwith said M.D. Shah met the petitioner and made further representations that all legal battles concerning mining concessions have been decided in favour of the first respondent; that said M.D. Shah also represented that he is arranging an interest free deposit of Rs. 20 lakhs and once that is done the applicant would be paid of whatever advances made to respondent No. 1 as also the price of the said truck. The petitioner then mentions that accordingly an agreement was signed on 2nd April, 1984; that said M.D. Shah could not arrange the finance for the first respondent and, therefore, the first respondent failed to pay whatever advances he had received as also the price of the said truck. It is then averred that the applicant came to know that respondent No. 1 was not a trustworthy person and that M/s. Dahej Minerals Ltd.; was only a hoax as in the meantime the respondent No. 1 sent a letter dated 30th April, 1984. In the meantime the owner of Standard Garage, Porvorim, where the truck was being repaired, was contacted by the petitioner’s representative and on showing him the ownership documents of registration requested the said garage owner not to hand over the truck to anybody or to the respondent No. 1; that when the petitioner’s representative visited the said garage for taking delivery the said truck was missing from the garage and the garage owner told him that the first respondent had removed the truck on 12th May, 1984 in his absence without his knowledge. Accordingly, F.I.R. was lodged on 11th June, 1984 that there was a theft in respect of the said truck.
4. Soon thereafter the Officer of the Mapusa Police Station seized the truck on 16th June, 1984 from the hands of respondent No. 2 and that seizure was reported to the Judicial Magistrate, First Class, Mapusa. An application was presented on behalf of the petitioner and on hearing Mapusa Police in the matter the Judicial Magistrate by his order dated 21st June, 1984 made an order delivering the possession of the said truck to the petitioner on his executing a security bond of Rs. 10,000/-. In terms of this order the petitioner’s representative took delivery of the truck from the Mapusa Police after signing a receipt thereof. A sum of Rs. 22,476/- was also paid to the garage owner in full and final settlement for the repairs of the said truck.
5. On or about 25th July, 1984 the respondent No. 2, Gadekar, moved an application before the Judicial Magistrate, First Class, Mapusa, vide Criminal Miscellaneous Application No. 35 of 1984 for custody of the said truck on the averment that the said truck was given to him on hire by the first respondent for a period of six months from 10th May, 1984 to 9th November, 1984 on a monthly hire charges of Rs. 10,000/-. as per agreement dated 10th May, 1984. He also mentioned that he had already paid a sum of Rs. 30,000/- to the first respondent on two occasions under receipts. On hearing all the parties the Judicial Magistrate, First Class made an order and judgment dated 15th January, 1985 directing that the custody of the vehicle be given to the second respondent and it is this order which is now challenged in this proceedings.
6. Two contentions have been raised by Shri J. Dias, learned Counsel for the petitioner. According to him, the Magistrate once having made an order on 21st June, 1984 handing over the possession of the truck to the petitioner, the Magistrate has exhausted his power and that way he had become functus officio. That the impugned order dated 15th January, 1985 at the behest of respondent No. 2 is, therefore, without jurisdiction as it amounts to reviewing the earlier order dated 21st June, 1984 which power is not conferred on Magistrate. The impugned order is, therefore, illegal and without jurisdiction. The second contention is that all that a Magistrate is required to do under section 457 Cri.P.C. is to find out who is entitled to the possession of the seized property and in fitness of things, since the petitioner is, admittedly, the registered owner of the said truck he was so entitled and, therefore, the Judicial Magistrate, First Class, Mapusa, has exercised jurisdiction illegally in revoking the earlier order and handing over the seized truck to respondent No. 2.
7. At the threshold it is argued on behalf of respondents Nos. 1 and 2 that this petition is a second revision at the behest at the petitioner in any event though the petitioner has styled it as petition under Article 227 or section 482 of Cri.P.C. Firstly that the order passed is an interlocutory order and not a final order and secondly the petitioner has exhausted his remedy of a revision before the Court of Sessions and having failed therein the present application is a second chance as a revision though it is labelled as a petition under the Constitution or under the inherent jurisdiction. According to Shri Kakedkar, therefore, the label given to the petition cannot remove the bar and the petition must be dismissed on these grounds. On merits the petition has been vehemently opposed in that it is canvassed that in view of the material on record the Magistrate has passed an order which he was competent to pass and the same cannot be styled as a review or that the Magistrate had become functus officio to decide application presented by respondent No. 2 for custody of the seized truck.
8. On reading the impugned order it has been pointed out that Magistrate has applied his mind to the facts and circumstances of the case and on finding that possession was unlawfully taken from the hands of respondent No. 2, if in such circumstances, that truck is restored there is no error or failure of jurisdiction and that way this Court ought not to interfere with the impugned order of the Magistrate.
9. From the facts disclosed it is clear that although a criminal complaint is lodged by the petitioner on 11th June, 1984 pursuant to which Mapusa Police seized the truck on 16th June, 1984 from the hands of respondent No. 2, so far no charge sheet has been filed by the Police in the Court of Judicial Magistrate, First Class. It is, therefore, undisputable that here is a case of seizure of property to which section 457 will apply. Section 457 speaks of seizure of property by the police and reported to a Magistrate and such property is not produced before any Criminal Court during an inquiry of trial, the Magistrate may make such order as he thinks fit respecting the disposal of that property or delivery of such property to a person entitled thereof.
10. Soon after the seizure an application was moved by the petitioner and as the matter was under investigation on seeing the papers of registration, the Magistrate made an order on 21st June, 1984 that custody of the truck be given to the petitioner on his executing a bond of Rs. 10,000/-. Subsequently, respondent No. 2 Gadekar moved an application on 25th August, 1984 and it is on this application that all the interested parties were heard and the impugned order was made requiring the petitioner to deliver the possession of the truck to the respondent No. 2 within 10 days from the date of order. Being aggrieved the petitioner preferred an appeal before the Sessions Judge, Panaji, being Criminal Appeal No. 3 of 1985. The learned Sessions Judge by his judgment dated 7th May, 1985 dismissed that appeal and after the dismissal of that appeal the petitioner has now come in a petition under Article 227 of the Constitution and section 482 of Cri.P.C.
11. First of all the appeal filed by the petitioner before the Court of Sessions was highly doubtful and according to me under the law the petitioner could have preferred only a revision application. Section 454 clearly says that any aggrieved person may appeal against any order made under sections 452 and 453 to the Court to which appeals ordinarily lie from conviction. This being the position, it is clear that in respect of an order made under section 457 of Cri.P.C. no appeal would lie and only a revision would lie, therefore, for all practical purposes the Criminal Appeal No. 3 of 1985 decided by the learned Sessions Judge has to be treated as a revision application filed by the petitioner. In the first instance by the bar of sub-section (3) of section 397 of Cr. P.C. no second revision can lie and, therefore, the petitioner might have styled the present petition to be one under Article 227 of the Constitution of India or section 482 of Cri.P.C.
12. It is not without justification that Mr. Kakedkar has rightly pointed out that the present petition for all practical purposes amounts to a second revision which is prohibited by the express provision of the law and irrespective of the label given to it, no such petition ought to be entertained. In support of this contention Mr. Kakedkar has relied upon the authority of in the decision of Jagar Singh v. Ranbir Singh. It is true that in this case the Supreme Court held that the object of section 397(3) is to prevent a multiple exercise of revisional powers and to secure early finality to orders. Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Sessions Court or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of other authority. That once the Sessions Judge refuses to interfere with the order of the Magistrate no further power of High Court jurisdiction could be invoked as that jurisdiction is invoked to avoid the order of the Magistrate and not of the Sessions Judge and, therefore, the bar of sub-section (3) of section 397 is effectively attracted. Mr. Dias has, however, seriously disputed this proposition saying that authority is no more a good law after the 44th Amendment of the Constitution of India by which 42nd Amendment is restored and all Tribunals come under the supervisory jurisdiction under Article 227 and in support of this proposition he has relied upon a passage from Shorter Constitution of India by learned author Basu at page 567.
13. In support of the proposition that once the Magistrate made the order dated 21st June, 1984 he has exhausted his power under section 457 of the Cri.P.C. and by re-opening the matter the Magistrate reviews his own order which power is totally absent under the Code of Criminal Procedure. Mr. Dias relies upon a Division Bench decision of Muneshwar Bux Singh v. State through Raghunandan Prasad, . On the scope of section 523(2) of the old Code of Criminal Procedure the learned Judges held that there is no power under that section for passing an interim order. Section 523 of the old Code is a keen to section 457 of the new Code. The Court further held that mere fact security is demanded from the person to whom the property is handed over would not make the order an interim order and once the Magistrate has ordered delivery of the property seized to a person who is entitled to it, that order cannot be reviewed by a Magistrate passing the order. The only remedy open to the aggrieved party is to seek redress from a higher Court.
14. It is true that in this case Muneshwar Bux Singh had lodged a report against his brother-in-law Raghunandan Prasad that his lorry was stolen by Raghunandan. The Police had seized the lorry from the possession of Raghunandan Prasad. While investigating the case it was found that a dispute between Muneshwar Bux Singh and Raghunandan Prasad was of a civil nature and, therefore, a final report was submitted in this case and no prosecution was launched. Raghunandan Prasad moved an application under section 523. Lorry was returned to him. Some time later Muneshwar Bux Singh filed an application that based on the evidence of ownership the order of release passed in favour of Raghunandan Prasad be withdrawn and lorry be given to him. Accordingly lorry was handed over to Muneshwar Bux Singh by a second order. Subsequently a third order was passed in favour of Raghunandan Prasad when he moved another application that the lorry having been taken from his possession was ordered to be handed over to Muneshwar Bux Singh when not even a charge sheet is filed against him. No doubt the Court held that once the Magistrate passed the order handing over the lorry to Raghunandan Prasad he became functus officio and he could not revised his own order and any subsequent orders.
15. But according to Mr. Kakedkar the Division Bench of this Court in the case of Shamrao Sampatrao Khanderai v. State of Maharashtra and another, reported in Cri.L.J. 1457 has taken a different view that the custody and disposal of stolen property is not a final order but an interlocutory order and further that it can be modified after hearing all the concerned parties. Such modification of an order does not amount to a review as the earlier order is not passed after hearing the parties concerned. It is further submitted that this authority of Division Bench is binding on me as a Single Judge hearing the present petition. In this case the facts are few. One Baburao acting on his behalf of his mother Lilabai filed a report to the police alleging that Ramrao Sampatrao Gawande has committed theft of a she-buffalo belonging to Lilabai. Based on that complaint the police seized the she-buffalo from the possession of Shamrao. Shamrao filed an application praying that custody of she-buffalo be given to him contending that he had purchased the she-buffalo from Ramrao S. Gawande. On 22nd December, 1976 the Magistrate passed an order that she-buffalo be entrusted to Shamrao on condition that he would produce it whenever directed or would pay a penalty of Rs. 1500/-. Thereafter, Lilabai filed an application requesting the Court that custody of she-buffalo be given to her. She contended that Shamrao had alleged that he had purchased the she-buffalo for Rs. 1500/- when its price was Rs. 2500/- and as such the transaction was not a bona fide. On hearing Lilabai and Shamrao the Magistrate passed an order that the she-buffalo be given in the custody of Lilabai on her executing the necessary surety bond. That order was challenged by Shamrao in the Court of Sessions which was dismissed and that is how Shamrao landed himself in the High Court in a petition under section 482 Cri.P.C. Similar contention was raised as now contended by Shri Dias that the order was final and the Magistrate could not modify it. The Division Court speaking through Gadgil, J., held that the order passed by the Magistrate on 22nd December, 1976 giving the she-buffalo to Shamrao was without hearing Lilabai. Therefore, when Lilabai presented an application it was open to the Magistrate to modify his earlier order dated 22nd December, 1976 and that order does not amount to reviewing the earlier order. On the contrary it was held that the Magistrate passed an appropriate order after hearing all the concerned parties.
16. It must, be straightaway held that the case of the respondent is not far from the case decided by the Division Bench of this Court. The Magistrate on being satisfied that the registration papers were in the name of the petitioner made that order but when Gadekar respondent No. 2 moved the application showing the Magistrate how he has come in possession of that truck, he also showed his entitlement to it further showing doubt and authenticity of the criminal complaint itself. When the Magistrate passed his second order dated 15th January, 1985, I am unable to hold that he had no power to modify earlier order or that it amounted to review. Admittedly, Gadekar was not heard when the first order was passed as he was nowhere in the picture and that order in any event was ex parte to him. It is difficult, therefore, to hold that the Magistrate exercised his powers of review or that he had already become functus officio. Secondly, it must be seen that order in favour of the petitioner was for delivery of the truck to him upon execution of a bond which was, therefore, again clearly an interim order. The second order passed ordering the truck to be handed over to respondent No. 2 which is impugned presently is after hearing all the parties concerned and by which time it was clear that no charge sheet had even been filed. Shri Kakedkar is fully justified when he mentions that the present case falls squarely within the ratio decided by the Division Bench and further that I am unable to depart from the judgment.
17. Coming to the next question that the Magistrate is bound to order custody of the seized property in favour of the real owner when such owner makes a claim in that it is contended that a Magistrate has to find out who is entitled to the seized property. According to Shri Dias the expression ‘entitled to possession’ in section 457 of Cri.P.C. is important and relevant. In support of this proposition Mr. Dias places reliance on several averments made in the petition. He says that the petitioner gave the truck for one month on hire charges but no hire charges were paid and the period of one month is long over. Therefore, respondent No. 1 was entitled to retain that truck. Secondly, the agreement dated 2nd April, 1984 according to the very respondent No. 1 stood cancelled. If that be so according to Shri Dias there was no question of respondent No. 1 paying anything towards the truck and therefore, since the petitioner is possessing documents of registration the lorry must be returned to him. In support of this case he has relied upon the authority of Yousoof Marakair v. State of Mysore and another, reported in A.I.R. 1968 Mysore 203. It is true that in this case a scooter was lost and a report was lodged about it’s missing. Few days thereafter that scooter was found deserted at some place. As an abandoned property the police seized it and the Tahsildar who is also the Second Magistrate, Vellore, sold the scooter in public auction for a sum of Rs. 1350/-. That scooter was thereafter seized by the police based on the complaint of the owner and the scooter pursuant to the order of the Magistrate was returned to the complainant. The purchaser moved an application for possession on the ground that he was the bona fide purchaser. The Court upheld the order of the Magistrate giving possession of the scooter to the real owner, with the result that bona fide purchaser lost the property. He also relied on the decision of A.S.S. Ahmed Sahib v. Commissioner of Police, Madras and another, . While dealing with the case under section 523(1) it was laid down that the Magistrate is required to see as to who is the person entitled to possession. The test laid down in this case is that when an offence is not made out the property should be delivered to the person from whom it was seized for taken. But, however, it will depend upon the circumstances of each case. No doubt it is mentioned that the actual possession of the property at the time it was seized may be the relevant factor but not conclusive to determine the entitlement of that possession. It is further laid down that a person may be in unlawful possession at the time it was seized though he has not committed the offence and in that circumstances it cannot be said that he is entitled to possession. Shri Dias also relied on the authority of Ram Prakash Sharma v. State of Haryana, .
18. Shri Dias, however, mentions that the decision rendered by Division Court in the Bombay Case is under section 451 of Cr. P.C. and there is no decision cited by the respondents for the proposition that modification of the order under section 457 cannot be made. According to him all authorities speak of modification of orders made under sections 452 and 453 and not of orders made under section 457 and those authorities are not applicable. I am, however, unable to accept this argument. According to me whatever orders made during the investigation by the police in respect of seized property and orders made pending the enquiry and trial when property is produced before the Court do not stand on different footings. The principle applied to one must be applied with equal force to the others and there is hardly any difference in the matter. Even in the authority of Ram Prakash Sharma v. State of Haryana, what the Supreme Court has laid down is that the Court has to be circumspect in a situation before releasing the property. The question of release has to be decided on its own merits in each case and the exercise of power after due consideration in the interest of justice.
19. In the present case it must be seen that from the documents placed on record the respondent No. 1 has taken possession of the truck pursuant to some contract although it is true as Shri Dias mentions that the contract is said to have been cancelled by the respondent No. 1 This position is, however, seriously disputed by the learned Counsel for the respondent No. 1 who says that the respondent No. 1 never instructed the solicitors to give any notice on behalf of M/s. Dahej Minerals Ltd., and that it might have been worked up even by the very petitioner. It must be seen that all these are at the moment only bare allegations. The further fact, however, gains some importance, namely, that the petitioner has already started civil litigations. Mr. Kakedkar says that more than one suit is filed in respect of the said agreement. Less said better it is insofar as the present matter is concerned because in my view the rights between the parties are finally required to be decided by the competent Civil Court. I am deliberately avoiding to say more in this respect. Coming back to the bare facts it is clear to me that pursuant to some agreement between respondent No. 1 and respondent No. 2, truck was lying in possession of respondent No. 2 from whom it was seized. Even as late as the impugned order was made no charge sheet was filed by the police although it was well over 7 months. The civil litigations are already pending. The Magistrate in his impugned order dated 15th January, 1985 has elaborately discussed as to how an order is required to be made giving delivery of that truck to respondent No. 2 from whom it was seized by the police. In his discussion he mentions that the F.I.R. lodged by the applicant had not been produced before him. The F.I.R. also does not disclose any offence against respondent No. 2 and in view of the various averments relating to the agreement the dispute between the parties is of a civil nature and police, therefore, could not have attached the said truck from the possession of respondent No. 2, I do not find that the order made by the Magistrate is in any manner an order without jurisdiction or that the order is perverse or that the order is one if made to stand occasions a failure of justice. Even assuming that it would be still open to the petitioner to challenge the order of the Magistrate under section 482 Cri.P.C. or Article 227 of the Constitution, I am unable to be persuaded to accept that there is a case the decision of which is without jurisdiction or is against the principles of natural justice or is in flagrant violation of law or is an order founded on no material or suffers from errors of law apparent on the face of the record. In this view of the matter the application fails. Rule is, accordingly, discharged. The parties are left to bear their own costs.
20. Shri Dias, learned Counsel for the petitioner, prayed that he wants to prefer an appeal against this judgment and, therefore, prays for maintaining the status quo. As mentioned earlier, while granting rule is, this petition, status quo was ordered to be maintained. The parties are directed to maintain status quo for a period of 4 weeks from today.