IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 Crl.MC.No. 1182 of 2009() ---------------------------------- CMP.15562/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR (CRIME NO. 502/2008 OF VIYYUR POLICE STATION) ------------------ PETITIONER(S): ----------------------- JANEESH, AGED 26 YEARS S/O.PAULSON, THANIKAL HOUSE, NELLANKARA PO, THRISSUR DISTRICT. BY ADVS. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT(S): ------------------------ 1. KURIAKOSE AGED 52 YEARS, S/O.KODIYATTIL PAILY, KATTILAPOOVAM, MADAKKATHARA VILLAGE, THRISSUR. 2. STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH CORT OF KERALA,ERNAKULAM, REPRESENTING S.I.POLICE, VIYYUR POLICE STATION. R1 BY ADV. SRI.RAJIT R2 BY PUBLIC PROSECUTOR SRI. JIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CMA NO.2463/09 IN CRMC NO. 1182/2009 DISMISSED 15/06/2009 SD/-M.SASIDHARAN NAMBIAR, JUDGE. /TRUE COPY/ P.S.TO JUDGE LN M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 1182 OF 2009 =========================== Dated this the 15th day of June,2009 ORDER An Alto Car KL-8/AD-2043 was seized by the police in Crime 502/2008 of Viyyur Police Station being tried as C.C.1971/2008 before Judicial First Class Magistrate Court-I, Thrissur. Petitioner is the registered owner of the car. He filed C.M.P 15562/2008 under section 451 of Code of Criminal Procedure for interim custody of the vehicle contending that being the registered owner he is entitled to get custody of the vehicle. Under Annexure 1 order learned Magistrate granted interim custody of the vehicle to the accused in the case, who is the first respondent herein, on executing a bond for Rs.1,00,000/- with two solvent sureties. This petition is filed under section 482 of Code of Criminal Procedure to quash the said order contending that being the registered owner learned Magistrate should have granted interim custody of the vehicle to the petitioner especially when first respondent did not file an application for interim custody. 2. Learned counsel appearing for petitioner and Crl.M.C.1182/2009 2 learned counsel appearing for first respondent were heard. 3. The argument of the learned counsel appearing for the petitioner is that first respondent is basing the claim on an agreement produced before the learned Magistrate, which is apparently a concocted document and based on the said document, first respondent is not entitled to get interim custody of the vehicle. Learned counsel pointed out that the vehicle was earlier entrusted to the first respondent, as security for the loan obtained by the petitioner and subsequently when the petitioner discharged the liability as the vehicle had met with an accident while it was with first respondent, it has to be repaired and at that time first respondent promised to purchase the car which was agreeable to the petitioner, but it did not materialise and therefore first respondent is not entitled to the interim custody of the vehicle. 4. Learned counsel appearing for the first respondent submitted that eventhough petitioner is the registered owner of the vehicle, police had seized the vehicle from the custody of first respondent and his custody at that time was legal and in such circumstance learned Magistrate was justified in directing interim custody of the vehicle to the person from whom the vehicle was seized and the remedy of the petitioner, if any, is to seek custody of the Crl.M.C.1182/2009 3 vehicle on the alleged violation of agreement from civil court. 5. Under Annexure 1 order, learned Magistrate has only granted interim custody of the vehicle. Interim custody was given to the first respondent, eventhough he did not file a petition and instead the registered owner had filed a petition, for the reason that possession was taken not from the registered owner but from the first respondent. Though learned counsel appearing for the petitioner vehemently argued that the agreement produced and relied on by the first respondent is a concocted one and hence it should not have been relied on, it is not a question which could be settled in this petition. Even if the agreement produced by the first respondent is not the agreement for sale entered into with the petitioner, from the admission of the petitioner himself it is clear that there was an agreement for sale entered into by the petitioner and first respondent, though petitioner has a case that it was not reduced to writing and was only oral. It is also admitted that when such an agreement was entered into, possession of the vehicle was with the first respondent, though according to the petitioner it was as security for the loan obtained. But even the case of the petitioner is that when the agreement was entered into, Crl.M.C.1182/2009 4 that creditor debtor relationship was terminated and petitioner allowed first respondent to retain the vehicle only pursuant to the agreement for sale. In such circumstance, possession of the vehicle, when it was seized by the police was lawful possession. 6. The question is whether petitioner is entitled to get back the vehicle, when possession with first respondent,at the time of seizure was on the strength of the agreement for sale. If first respondent is entitled to retain the vehicle on the strength of the agreement for sale, it cannot be disturbed in a petition filed under section 451 of the Code of Criminal Procedure. Petitioner is at liberty to approach the civil court and establish his right and title to the vehicle and get the vehicle from the first respondent by due process of law. I find no reason to interfere with the order granting interim custody of the vehicle to the first respondent in such circumstances. Learned counsel then submitted that the order does not contain any restriction for transfer or sale of the vehicle and atleast some conditions are to be imposed. I find force in the submission. Therefore while maintaining the order for interim custody of the vehicle to the first respondent, it is made clear that in the bond to be executed before the Magistrate, first respondent shall Crl.M.C.1182/2009 5 undertake that he will not transfer the vehicle and produce the vehicle as and when directed by the Magistrate. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006