IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 Crl.MC.No. 1360 of 2009() ------------------------- CMP.3040/2009 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... PETITIONER(S): PETITIONER ------------------------- SAJIDEVAN,KULATHINTEKIZHAKETHIL HOUSE, AYANIVELIKULANGARA,KARUNAGAPPALLY. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): COMPLAINANTS --------------------------- 1. STATE OF KERALA,REPRESENTED BY SUB INSPECTOR OF POLICE,CHAVARA. 2. FRANCIS GEORGE,KOLASSERI PUTHUVAL HOUSE,MEENATHU CHERI, SAKTHIKULANGARA, KOLLAM. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI..RAJAVIJAYA RAGHAVAN FOR R2 SRI.R.RANJITH FOR R2 PUBLIC PROSECUTOR SRI. T.K.VIPINDAS -R1,R3 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/10/2009 ALONG WITH CRMC NO. 1363 OF 2009, THE COURT ON 4.11.2009 PASSED THE FOLLOWING: C.R. C.T. RAVIKUMAR, J. -------------------------------------------- CRL. M.C. NOS. 1360 & 1363 OF 2009 -------------------------------------------- Dated this the 4th day of November, 2009 O R D E R The common order passed by the Judicial First Class Magistrate's Court, Karunagappally in C.M.P. Nos. 2973 of 2009 and 3040 of 2009, both in Crime No. 91 of 2009 of Chavara Police Station, is under challenge in these Crl. Miscellaneous Cases filed under Section 482 of the Code of Criminal Procedure. They were directed respectively against the orders in C.M.P. Nos. 2973 of 2009 and 3040 of 2009. The parties are referred to hereafter in this order according to their respective status in Crl.M.C. No.1360 of 2009. The petitioner herein was the petitioner in C.M.P. No.3040 of 2009 and the second respondent in C.M.P. No.2973 of 2009 and the status of the second respondent herein in the said C.M.Ps. was exactly in the vice versa. The petitioner seeks a further direction to the court below to hand over interim custody of the vehicle involved in the cases. Since they are directed against the common order and common facts and issues are involved, they are being disposed of by this common order. Crl.M.C. Nos.1360 & 1363/2009 2 2. The common facts and issues may concisely be stated as hereunder: The driver of a mini bus bearing Registration No.KL-01-D 7059 who is an employee of the second respondent herein lodged a complaint before the Chavara Police Station alleging commission of an offence under Section 395 of the Indian Penal Code in respect of the said vehicle. Accordingly, Crime No. 91 of 2009 was registered in the said police station. The petitioner herein is the first accused in the said crime. Later, the said vehicle was seized by the police and it was produced before the court as TR No.128 of 2009. Thereupon, the petitioner herein/first accused in the crime filed C.M.P. No.3040 of 2009 and the second respondent herein filed C.M.P. No.2973 of 2009 under Section 451 Cr.P.C., claiming interim custody of the said vehicle. The said petitions were heard jointly by the learned Magistrate. On the side of the petitioner herein, seven documents were marked as Exts.D1 to D7. On the side of the second respondent, five documents were produced and they were marked as Exts.A1 to A5. The contentions raised on behalf of the petitioner herein were that he purchased the said vehicle from one Lekhakumari on 23.11.2002 and he was in absolute possession and enjoyment of the same till it was seized by the police based on the crime Crl.M.C. Nos.1360 & 1363/2009 3 foisted against him. According to him, it was he who had paid the hire purchase arrears, insurance premium and tax in respect of the said vehicle. That apart, he had spent an amount of Rs.1,20,000/- for altering the model of the vehicle. On the other hand, the second respondent herein contended that he had purchased the vehicle from the said Lekhakumari and it was in his possession and enjoyment from 23.6.2007 onwards. His further contention was that on 16.2.2009, dacoity was committed by the petitioner and certain others in respect of the said vehicle and the vehicle was stolen and it was his employee who lodged the complaint which led to the registration of the crime and seizure of the vehicle. In short, the rival contentions would reveal that both the petitioner and the second respondent claim ownership of the said vehicle and seek interim custody of the same. 3. Before considering the various contentions raised by both sides and the correctness of the impugned order, I think it is appropriate and apposite to deal with the scope and application of Section 451 Cr.P.C. and also the considerations to be taken into account while exercising the said power. 4. The summary power to order custody granted to a Magistrate Crl.M.C. Nos.1360 & 1363/2009 4 under Section 451 Cr.P.C. is to be exercised expeditiously and judiciously in respect of any property produced before that Court in the circumstances contemplated under the said section. However, it should not be exercised when the competent civil court is in seizin of the matter to decide the question of ownership and right of possession. There cannot be any doubt that the said power of the Magistrate does not extend to the determination of ownership of the property so produced and the main purpose of such exercise when the concerned property is a vehicle shall be (i) the owner of the vehicle should not suffer on account of its remaining unused or by its misappropriation and (ii) the court or police would not be required to keep the vehicle in safe custody as the vehicle is meant for user and for want of user, it is likely to get rusted. The interim custody of any such vehicle can only be a custody in trust for and on behalf of the court and its very purpose is nothing but to protect and preserve the property, pending trial and also to ensure control over it. That is why while exercising the power, the court imposes or incorporates necessary precautions and conditions. 5. The interim custody of a vehicle is generally given to its registered owner and not to one who merely asserts his title on sale deed (see the decision in Biju v. Sub Inspector of Police, 1998 Crl. L.J. 1927 Crl.M.C. Nos.1360 & 1363/2009 5 (Kerala). The registered owner of a vehicle is entitled to custody of any such vehicle unless any other person establishes his superior title. But, when the ownership of the concerned vehicle has not been transferred, but the owner has received a bulk amount pursuant to an agreement for sale, then the purchaser would be entitled to get custody of the vehicle in the absence of any other compelling circumstances. Sometimes interim custody of a vehicle can be released to the person from whom seizure was effected even when there is dispute between the purchaser and seller of the vehicle ( Biju v. Sub Inspector or Police, 1998 Crl. L.J. 1927 (Kerala). Who could best use the vehicle is yet another important consideration taken into account while exercising the power under the said section. But, considerations like ownership in the registration certificate and being the person who could best use the vehicle would all lose their significance when the applicant is an accused alleged to have acquired the possession of the vehicle in question through commission of an offence. 6. Now, the impugned order may be examined in the light of the aforesaid discussions regarding the scope of power under Section 451 Cr.P.C. and its purposes and considerations. As noticed hereinbefore, for substantiating their claim over the said vehicle, both the petitioner and the second respondent had produced certain documents before the court Crl.M.C. Nos.1360 & 1363/2009 6 below. It is noteworthy that before the court below, the registered owner of the vehicle Lekhakumari filed an affidavit and a petition. The affidavit was to the effect that on 23.6.2007, she transferred the ownership of the vehicle to the second respondent herein by way of sale and from that day onwards, he was in possession and custody of the vehicle. It was, therefore, prayed by her to release the said vehicle to the interim custody of the second respondent herein. The petitioner herein had produced Exts.D1 to D7 to substantiate the claim of interim custody. Ext.D1 is the sale agreement dated 23.11.2002 said to have been executed between himself and the said Lekhakumari, Ext.D2 is the plying permit from 2.1.2001 to 1.4.2006 and it is a duplicate copy issued from the office of the Regional Transport Authority, Ext.D3 is the pollution control certificate, Ext.D4 is the notice of termination of hire purchase agreement, Ext.D5 is the bill for the body building and altering its model and Exts.D6 and D7 are the insurance certificates, all pertaining to the said vehicle. Ext.D5 would show that in connection with some repair works effected including body building, an amount of Rs.1,15,000/- was incurred and the same was paid by the petitioner. The second respondent, in order to resist the claim of the petitioner and also to substantiate his claim had produced five documents. Ext.A1 is the original R.C. Book, Ext.A2 is the sale agreement dated 23.6.2007 executed between himself and the said Crl.M.C. Nos.1360 & 1363/2009 7 Lekhakumari, Ext.A3 is the permit having validity upto 7.8.2011, Ext.A4 is the insurance certificate and Ext.A5 is series are receipts showing the contribution made to the Kerala Motor Vehicle Workers' Welfare Fund Board. 7. The learned Magistrate has rightly taken note of the important fact that in all the documents issued by the statutory authorities, Lekhakumari is shown as the registered owner. Both the petitioner and the second respondent admit the same. The original R.C. Book and recent documents with respect to the said vehicle were produced by the second respondent herein. Above all, the affidavit of the undisputed registered owner would show that she had sold the vehicle to the second respondent and from 23.6.2007 onwards, he was in possession of the said vehicle. In other words, the said Lekhakumari admitted the transfer of ownership of the vehicle to the second respondent by way of sale as per Ext.P2 and at the same time she refuted execution of Ext.D1 sale agreement in favour of the petitioner herein. 8. Yet another crucial aspect was taken into consideration by the learned Magistrate, viz. the petitioner herein is the first accused in Crime No.91 of 2009 of Chavara Police Station alleging commission offence Crl.M.C. Nos.1360 & 1363/2009 8 under Section 395 I.P.C. in relation to the vehicle involved in these cases. Annexure-II common order passed by the learned Magistrate would reveal that the order was passed keeping in mind the very purpose of exercising the power and also the various settled positions in regard to the considerations which were to be taken into account while exercising the power. Having taken such consideration, the interim custody of the vehicle has been given to the second respondent, finding that he is the best person who could put the vehicle to best use. The order would further show that proper precautions were taken and conditions were imposed in the order, inasmuch as it was released to the interim custody of the second respondent only on his executing a bond for Rs.3,00,000/- with two solvent sureties each for the like sum and with a condition that he should produce the vehicle as and when directed. 9. The impugned order further makes it very clear that it would not affect the petitioner's right to resort to civil remedies for recovery of the monetary claim, if any, against the original owner. The said position is even otherwise clear as a Magistrate while exercising power under Section 451 Cr.P.C. is not deciding the question of ownership and right to possession. What is being considered while exercising the said power is only the right to interim custody. Crl.M.C. Nos.1360 & 1363/2009 9 10. The above discussions would show that the common order dated 31.3.2009 passed by the learned Magistrate in C.M.P. Nos.2973 of 2009 and 3040 of 2009 in Crime No.91 of 2009 of Chavara Police Station does not call for any interference by this Court under Section 482 Cr.P.C.. The Crl. Miscellaneous Cases are, therefore, devoid of merits and they are accordingly dismissed. (C.T. RAVIKUMAR, JUDGE) sp/ Crl.M.C. Nos.1360 & 1363/2009 10 C.R. C.T. RAVIKUMAR, J. CRL.M.C.NOS. 1360 &1363 2009 O R D E R 4th November, 2009 Crl.M.C. Nos.1360 & 1363/2009 11