The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.1870 of 2023 (In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973) ----------- Padma Bhusan Dash ……. Petitioner(s) -Versus- State of Odisha & Others ……. Opp. Party(s)
Legal Reasoning
this Court in the instant petition. 8. The learned Sessions Judge while allowing the Criminal Revision filed by the Opposite Party No.2 inter alia stated as under:- “7.1 There being no dispute with regard to the factual aspect narrated above, the law regulating the release of the seized articles is to be dealt herein only. The provision contained under Section 457 Cr.P.C. provides that whenever the seizure of property was reported by the police to a Magistrate and such property is not produced before the Court during an enquiry or Page 3 of 6 4
Arguments
For the Petitioner : Mr. R.K. Sahoo, Advocate For the Opp. Parties : Mr. T.K. Praharaj, Standing Counsel Mr. D. Nayak, Senior Advocate along with Ms. Bini Mishra, Advocate for O.P. No.2 Mr. S. Sastry, Advocate for O.P. No.3 CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA _________________________________________________________ Date of Hearing: 06.03.2024: Date of Judgment: 11.03.2024 _________________________________________________________ S.S. Mishra, J. 1. The petitioner has challenged the order dated 10.04.2023 passed by the learned Sessions Judge, Balasore in Criminal Revision No.14 of 2023, whereby the Revisional Court has directed release of the vehicle in favour of the Opposite Party No.2. 2. The brief facts of the case germinate from the record reads as 2 under:- 3. The Opposite Party No.2 lodged an F.I.R. at Sahadevkhunta P.S. Case No.420 of 2022 alleging therein that the present petitioner is the registered owner of the truck in subject. The accused/petitioner herein in order to sell the truck in subject, executed an agreement with the Opposite Party No.2 on 08.06.2020 and received partial consideration amount of Rs.1,80,000/- out of total consideration of Rs.14,50,000/-. The accused/petitioner herein has also handed over the physical possession of the vehicle to the Opposite Party No.2. The Opposite Party No.2 while on lawful possession of the vehicle in question, on 05.12.2022 at about 10.00 P.M. the accused/petitioner herein with the help of some antisocial snatched away the vehicle on gun point threatening the driver of the said truck. Therefore, the incident was reported to the police and F.I.R. was lodged against the petitioner. 4. When the matter stood thus, the Opposite Party No.2 herein moved an application under Section 457 Cr.P.C. before the court of the learned S.D.J.M., Balasore inter alia seeking release of the vehicle in his favour. The said case was registered as Crl. Misc. Case No.23 of 2023. The present petitioner being accused in the F.I.R. has also repeated similar application being registered as Crl. Misc. Case No.12 of 2023. Page 2 of 6 3 5. The learned S.D.J.M., Balasore vide its order dated 28.02.2023 rejected the application of the Opposite Party No.2 and allowed the application of the present petitioner. The said court was of the view that the vehicle should be released to the registered owner only. While passing the said order, the learned court below have accepted the factual scenario and have disagreed with the Opposite Party No.2 on the ground that the agreement to sell relied upon by Opposite Party No.2 cannot be given credence as the same is not registered one as required under the Registration Act. 6. The Opposite Party No.2 challenged the aforementioned order of the learned S.D.J.M. by filing Criminal Revision No.14 of 2023. 7. The learned Sessions Judge, Balasore vide its order dated 10.04.2023 has allowed the Revision Petition and set aside the order dated 28.02.2023 passed by the learned S.D.J.M, Balasore. The petitioner is aggrieved by the said order of the Revisional Court and seeks indulgence of
Decision
trial, the Magistrate may pass an order as he thinks fit with regard to disposal of the property or the delivery of such property to the person entitled to the possession thereof. It is crystal clear from the provision contained under Section 457 Cr.P.C. that the Magistrate is required to deliver the seized property to the person who is entitled to the possession thereof. The learned SDJM, Balasore while disposing of the application under Section 457 Cr.P.C. has not reflected a single word in its order as to who is entitled to possession of the seized vehicle. He has disposed of the application in a whimsical manner directing therein to deliver the seized property to the registered owner when the provision contained under Section 457 Cr.P.C. doesn’t speak for delivery of property to the owner of the same. In the present case, the petitioner has filed series of documents showing that he is in possession of the vehicle in question and since the date of taking of possession of the vehicle, he has paid the dues of the IndusInd Bank. The O.P. No.2 could not produce any document to show that after delivering the possession of the vehicle to the petitioner, he has further taken back the possession of the same in lawful manner and has ever paid the installment amount of the Bank till the date of seizure. The petitioner was in lawful possession of the vehicle in question which was handed over to him by the O.P.2. If the petitioner has violated any terms and conditions of the agreement dtd. 08.06.2020, the O.P. No.2 could have taken recourse of law for taking back the vehicle in question. The law doesn’t permit the O.P. No.2 to take the law into his own hand and take back the possession of the vehicle if any kind of default has been made by the petitioner to pay back the amount agreed between them and for violation of any terms and conditions of the agreement. When the vehicle was seized from the lawful possession of the petitioner, he is entitled to take interim custody of the same. The learned trial Court has not applied its judicial mind while directing the release of the vehicle in favour of O.P. No.2 and in an order passed misinterpreting law laid down by the Hon’ble Apex Court in the case of Sunderbhai Ambala Desai-v-State of Gujurat reported in (2002) 10 SCC 283.” erroneous manner impugned the 9. The Revisional Court had taken into consideration the fact that the Opposite Party No.2 herein had paid Rs.1,80,000/- to the petitioner herein being part payment of the sale consideration and the remaining sale consideration of Rs.12,70,000/- was paid by the Opposite Party No.2 to the Page 4 of 6 5 Financier of the Bank by paying 29 regular installments amounting to Rs.47,700/- each in six installments and Rs.45,700/- in 23 installments. 10. Mr. S. Sastry, learned counsel appearing for the Opposite Party No.3 Financial Company namely IndusInd Bank Limited does not dispute the fact. Rather, he affirmatively states before this Court that towards the loan amount, the entire installments has already been received by the Bank. 11. Therefore, from the admitted fact, three things are eminently clear namely there was an agreement to sell the vehicle between the petitioner and the Opposite Party No.2 although the same was not registered document. Secondly the possession of the vehicle was handed over to the Opposite Party No.2 by the petitioner himself. Thirdly the entire sale consideration has been paid by the Opposite Party No.2 to the Financier. Therefore, the unregistered agreement has been acted upon and the Opposite Party No.2 has discharged his obligation flowing from the agreement. However, it is the petitioner who has been wriggling out from complying his obligation under the agreement. 12. On the strength of the aforementioned three admitted facts, the Revisional Court has rightly allowed the Revision Petition and directed release of the vehicle to the Opposite Party No.2. 13. Perused the impugned order and all related documents filed by the learned counsels for both the parties. I found no legal infirmity in the order Page 5 of 6 6 dated 10.04.2023 passed by the learned Sessions Judge, Balasore in Criminal Revision No.14 of 2023. Therefore, no interference is called for. 14. The CRLMC is accordingly dismissed. ……………… S.S. Mishra (Judge) Orissa High Court, Cuttack The 11th March, 2024/A.K. Kar, ADR-cum-Addl. Principal Secretary Signature Not Verified Digitally Signed Signed by: ASISH KUMAR KAR Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Mar-2024 18:10:47 Page 6 of 6