Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. MMO No.119 of 2008 Judgment reserved on: 19.12.2008. Dated of Decision: January 6th, 2009. Kawal Singh. …..… Petitioner. Versus State of Himachal Pradesh. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Petitioner : Ms.Yogita Dutta, Advocate. For the Respondent : Mr.J.S. Guleria, Law Officer. Surinder Singh, J: This petition has been preferred under Section 482 of the Code of Criminal Procedure, in short the ‘Code’, challenging the orders dated 2.9.2008, passed by the learned Chief Judicial Magistrate, declining the release of the truck No.HR-38-A-3697, under Section 457 of the Code, which was taken into possession by the police in case FIR No.29 dated 8.2.2007, registered in police station Nahan, registered under Sections 406, 407, 420, 467, 468, 471, 482 and 120-B of the Indian Penal Code. The synoptical resume of the facts giving rise to the present petition may be stated thus. M/s Sood Goods Transport Company was having a contract to transport the factory goods. On 25.1.2007, the said truck was engaged to 2 transport 110 Air-conditioners from the premises of M/s Blue Star Limited, Kala Amb, to be taken to Secunderabad (AP). After loading, it went missing. When the whereabouts of the truck were not known, one Shri Rajiv Sood, an employee of the Goods Transport Company lodged the complaint in Police Station Sadar, on the basis of which FIR aforesaid was registered and a hunt for the said truck was made by the police. During the investigation, the petitioner Kawal Singh son of Shri Darshan Singh and another accused Rajinder Singh were found involved and were arrested on 14.2.2008. During their interrogation, the accused made the disclosure statements under Section 27 of the Indian Evidence Act and got recovered the truck, bearing registration No.HR- 37-A-4771; not HR-38-A-3697 of which the ownership of which is claimed by the accused petitioner herein, from near the petrol pump situated at Nandpur-Kalohar road in Punjab. During its search, the police recovered documents viz; Form No.47, National Permit No.1246/NP/2005 of vehicle No.HR- 38-A-3697, valid upto 30.6.07, which was issued in the name of one Rajesh Kumar son of Shri Kanshi Ram, resident of 17- 26, Mathura Road, Faridabad and an Army duty slip (computer printed). During the further interrogation, on 4.3.2007, the police also recovered the Air-conditioners kept inside a rented shop in village Kalhera, Tehsil and Police Station Morinda, District 3 Ropar, Punjab. The police found the involvement of petitioner and many other persons. They were also arraigned as accused, in the case. The challan has already been put in the court for the trial. The petitioner was granted bail and on 10.4.2008, he moved an application (page-370) under Section 457 of the Code of Criminal Procedure for the release of the truck. In the said application, duly supported by his affidavit, the petitioner supplied the following particulars of the said truck:- Truck Model/Registration Number Engine Number Chassis Number TATA 1612 HaR-38-A-3697 697D23ETQ 123183 360324ETQ0007628 The photocopy of the Registration Certificate and the Insurance cover were also attached with the application wherein model and year of the manufacturing of the truck is mentioned as 1997. The original registration certificate (RC) was not produced. Vide para-2 of the said application it was averred that the R.C.(original) was attached in civil case file titled Kawal Singh vs. State of Punjab pending in the court, the particulars of Court were not given in the application. The release of the truck was objected to by the police, on the ground that the police had taken truck No.HR-37-A- 4471 into possession and not truck bearing registration 4 No.HR-38-A-3697. The engine number of the said truck did not match with the Registration Certificate. Thus, it was not clear as to who was the owner of the said truck. The police sought further time to ascertain the ownership of the truck. The record further reveals that on 13.5.2008, the learned chief Judicial Magistrate directed the applicant to produce the original Registration Certificate and other documents showing the ownership of the vehicle. The Investigating Officer of this case was also directed to appear alongwith the case file and case was adjourned for 14.5.2008. Again the Investigating Officer objected to the release of the said truck on the ground to verify the Chassis and engine numbers as the police team was sent for the purpose, but the learned trial court after perusing the documents ordered for the conditional release of the said truck to the petitioner on supurdari bond in the sum of Rs.7,00,000/- with one local surety in the like amount. The petitioner sought time for furnishing bond. The case was adjourned for 17.6.2008. On 17.6.2008, the respondent- State filed detailed reply. The police sought further time to verify the Chassis and engine numbers of the vehicle, which did not even tally with the route permit recovered by the police. The petitioner also made a request for further time to produce the original registration certificate. Thus, the case was adjourned for 19.6.2008. 5 The record reveals that the police party was sent to Tata Motors, Jamshedpur, Jharkhand the manufacturing Unit to ascertain the ownership of the vehicle. From Jamshedpur, the police came to know that the said Chassis was manufactured by their Lucknow Unit. Police communicated with Lucknow based Unit, they sent the communication that the Chassis Number in question was dispatched for sale to ‘Pasco Motors Chandigarh’. On getting the details from ‘PASCO Tata Motors’ Chandigarh, it revealed that the engine number found on the recovered truck was sold to Mrs. Paramjit Kaur wife of Tejinder Pal Singh, R/o House No.3224/1, Sector 21-D, Chandigarh in the year 1996, who had sold her truck to Kesar Singh and Kesar Singh further sold it to Balwinder Kaur r/o Village Dhadheria, P.O. Khera, Tehsil and District Fatehgarh Sahib. This truck of Baljeet Kaur was bearing registration No.PB-23A-9890 and its model was 1996. How the engine of the truck of Baljeet Kaur was replaced and mounted on truck claimed by the petitioner is not known. On reconsidering the matter, learned trial court passed the impugned order dated 2.9.2008 whereby the request for release of the truck to the petitioner was declined, which has been assailed by the petitioner in the present petition on the following two grounds, firstly that the learned trial court could not have reviewed his earlier orders of release and secondly, the petitioner was entitled for its possession. 6 I have heard the learned counsel for the parties and gone through the record. From the rival contentions the following two important points arise for its determination:- (i) Whether the Magistrate has the powers to review his earlier order? (ii) Whether on the above facts, the learned Chief Judicial Magistrate could have held the petitioner entitled for possession of the truck in question? My answer on both the above points is in negative. The reasons are as follows: In so far as the point No.1 is concerned, as a sequel of facts above, in my considered opinion, the Magistrate has no jurisdiction and powers under the Code of Criminal Procedure to review his earlier orders passed rightly or wrongly on 14.5.2008. The criminal jurisprudence prohibits the interference of any order which may have been even passed at an interlocutory stage. It is open to the party, who feels aggrieved by the order of the said court, to assail it in appeal or revision or by filing a petition under Section 482 of the Code of Criminal Procedure in the High Court if permissible under the law. I hold that the subsequent order passed on 2.9.2008 by the learned Chief Judicial Magistrate is without jurisdiction, hence unsustainable and it deserves to be set-aside. To substantiate the answer to point No.(ii), the reference to Section 457 of the Code is essential. 7 Section 457 of the Code is a residuary provision not covered by Sections 451 and 452 of the Code and is applicable when: (i) the property has been seized by a police officer, (ii) such a reference is reported to a Magistrate under the provisions of the Code and (iii) when property so seized is not produced before the criminal Court during enquiry or trial. The expression, ‘may make such order as thinks fit’, in the section, limits the jurisdiction of the Magistrate to two alternatives viz. either to deliver the seized property to the person entitled to possession thereof or to make such disposal as he thinks proper in his discretion. If the person entitled for possession is known, the Magistrate may deliver the property to him, again he has a discretion in the matter. If the property has been acquired by him by illegal means he may refuse its release to him. In case person entitled to possession is not known he would issue a proclamation requiring any person who may claim the seized property to appear before him to establish his claim. Thus, it has been seen that the Magistrate is not empowered to decide the title of such a property and he is only to decide as to who is entitled for its possession. In the instant case, the truck in question was found abandoned behind the Petrol Pump situated at Nandpur- Kalohar road in Punjab. It was not recovered from the possession of the petitioner. 8 On consideration of the record, I find that the truck in question cannot be released to the petitioner, as he is not entitled for its possession because:- (i) The truck which was taken into possession by the police was bearing registration No.HR-37-A-4771 and not HR-38-A-3697, as claimed by the petitioner. (ii) The engine number was different to that mentioned in the copy of Registration Certificate. There is also no reference of any order passed by the Registering Authority for replacing the engine. (iii) Sub section (5) of Section 55 of the Motor Vehicles Act,1988 provides for the cancellation of the registration certificate by the Registering Authority if the engine number or chassis number embossed on the vehicle are different from the certificate of registration. Once the said certificate is cancelled the vehicle cannot be plied on the road. The police is at liberty to move the matter in accordance with the said provisions. (iv) The insurance details of vehicle No.HR-37- A-4771, shows that this was owned by Shri Rajvinder Singh s/o Shri Virsa Singh as per 9 documents at page 68 of the trial court file. Its engine number tallies with vehicle HR- 38-A-3697 claimed by the petitioner and chasis number is 360324 ETQ 067628. Thus the Chassis number of the vehicle taken into possession by the police may be a fabricated one. (v) The documents (at pages 74 to 78) of the trial court file which are alleged to have been signed by the Major/ Captain, OIC, Stocking Wing, (Commanding Officer) pertaining to August, 2006 show the overwriting of the registration numbers of the vehicle, i.e. HR-38-A-3697 or HR37-A- 4771. Thus it is not clear whether the vehicle in question is the same as claimed by the petitioner to show his entitlement for its possession. AND (vi) The particulars mentioned in the National permit also do not tally with the particulars of the registration certificate. Therefore, the pith and substance of the matter is the petitioner cannot be held to be entitled to the possession of the truck in question. The learned trial Court while passing the order, for release on supurdari, on 14.5.08 did not notice the above 10 facts. Therefore, for the foregoing reasons the order dated 14.5.08 is held to be unsustainable and is thus set-aside. Consequently both the orders, i.e. 14.5.2008 and 2.9.2008 are set-aside being wrong and illegal. The petitioner is left at liberty to get ascertained his title from the civil court. The record of the learned trial court be returned forthwith. The parties to appear before the learned Chief Judicial Magistrate on 22.1.2009. January 6th, 2009. (Surinder Singh) (Pds) Judge.