In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Misc.-M No.48307 of 2007 ..... Date of decision:21.1.2009 Paramjit Singh .....Petitioner v. State of Punjab and another .....Respondents .... Present: Mr. H.S. Sandhu, Senior Advocate with Mr. Karan Pathak, Advocate for the petitioner.1 Mr. P.S. Sidhu, Additional Advocate General, Punjab for the respondent-State. Mr. Gautam Dutt, Advocate for respondent No.2. ..... S.S. Saron, J. This criminal miscellaneous petition has been filed under Section 482 of the Code of Criminal Procedure (`Cr.P.C.' - for short) seeking quashing of the order dated 15.9.2007 (Annexure-P.3) passed by the learned Sub Divisional Judicial Magistrate, Khanna whereby the Tata 407 vehicle bearing registration No.PB-10-BG-1608 has been ordered to be released on `sapurdari’ to Parminder Singh (respondent No.2) on his furnishing `sapurdari’ bond in the sum of Rs.5 lacs with one surety in the like amount, undertaking not to dispose of the vehicle and to keep the vehicle intact and produce the same in Court as and when required during the trial of the case. A direction is also sought to give the possession of the said Tata 407 vehicle to the petitioner. The case set up by the petitioner is that he purchased the Tata Cr. Misc.-M No.48307/2007 [2] 407 vehicle in question from one Kesar Singh son of Gurcharan Singh for consideration. The registration certificate of the vehicle as also affidavit dated 21.2.2007 of the seller that he had received the full and final payment was given to him. The possession of the vehicle was also given to the petitioner by Kesar Singh. On the basis of the affidavit of Kesar Singh who sold the vehicle, the petitioner moved an application before the District Transport Officer (`DTO’ – for short), Jalandhar for transfer of the vehicle in his favour. He also paid the taxes for the year 2007-08. The DTO, Jalandhar transferred the vehicle in the name of the petitioner vide an entry dated 14.4.2007. Thereafter, on 31.7.2007, the said Tata 407 vehicle was seized by the Police in case FIR No.108 dated 11.5.2007 registered at Police Station Sadar Khanna for the offences under Sections 420, 467 and 471 Indian Penal Code (`IPC’ – for short). Rajnish Kumar, Assistant Sub Inspector of Police, In-charge, Police Post Issru, Police Station Sadar Khanna came to the Janta Tempo Union, Goraya where the vehicle was parked and he took possession of the same. A certificate dated 31.7.2007 (Annexure-P.2) regarding taking possession of the vehicle was given by aforesaid Rajnish Kumar, Assistant Sub Inspector of Police. The registration certificate of the vehicle was also taken. FIR No.108 dated 11.5.2007 in which the Tata 407 vehicle was taken in possession by the Police was lodged by Parminder Singh (respondent No.2) who alleged that Kesar Singh was owner of Tata 407 vehicle and he had sold the said vehicle to the complainant-Parminder Singh (respondent No.2) vide agreement dated 21.8.2006 for a sum of Rs.3,35,000/-. Possession of the vehicle had also been given. It was promised by Kesar Singh – the owner of the vehicle Cr. Misc.-M No.48307/2007 [3] that the papers of the vehicle would be given to Parminder Singh (respondent No.2) by 10.10.2006 after completing the same and the remaining amount would also be taken then. At the time of agreement dated 21.8.2006, the respondent No.2 Parmidner Singh had given Rs.50,000/- to Kesar Singh, the seller of the vehicle. The Tata 407 vehicle while it was with Kesar Singh was under a loan from M/s Tata Motors Limited, B.H.T.C., Zirakpur. On account of default in the re-payment of loan by Kesar Singh the vehicle had been re-possessed by the said financier by force on 26.8.2006 at 9.00 a.m. from Shiv Kumar, who was the driver of Parminder Singh (respondent No.2). Receipt regarding re-possession of the vehicle by the financier was given to the driver of Parminder Singh (respondent No.2). According to Parminder Singh (respondent No.2) he had given the balance amount to the seller of the vehicle, namely, Kesar Singh who deposed an affidavit dated 11.9.2006 in this regard, which was attested by the Executive Magistrate, Malaud. Kesar Singh at the time of sale had assured Parminder Singh (respondent No.2) that the loan would be deposited and he would get the vehicle released on that day. However, Kesar Singh did not give the possession of the vehicle to Parminder Singh (respondent No.2). On repeated requests made by respondent No.2 and asking as to whether Kesar Singh had deposited the loan amount, he gave an affidavit on 20.9.2006 stating therein that he had deposited all the instalments of loan of the Tata Motor vehicle and no amount was due. Besides, if any amount was due he himself would be responsible and that the hire purchase agreement be cancelled. Kesar Singh gave copies of the documents of the vehicle to Parminder Singh (respondent No.2). However, Cr. Misc.-M No.48307/2007 [4] after receiving the full payment of the vehicle and on demanding possession of the vehicle from Kesar Singh, he (Kesar Singh) instead of giving the possession of the vehicle was threatening Parminder Singh (respondent No.2). He was saying that he would not give possession of the vehicle and would implicate him in some false case as he was very close to the Police. Parminder Singh (respondent No.2) was constantly under threat of his life and property from Kesar Singh. By submitting the complaint, it was requested that a case of cheating be registered against Kesar Singh and possession of Tata 407 vehicle be given to him. It is on the basis of the said complaint that the Police seized the Tata 407 vehicle on 31.7.2007. The petitioner had, however, submitted an application (Annexure-P.1) to the DTO, Jalandhar for issuing a certificate to the effect that the vehicle has been transferred in his name. The DTO, Jalandhar made his endorsement (Annexure-P.1/A) on 24.9.2007 on the said application (Annexure-P.1) to the effect that the vehicle had been transferred in the name of the petitioner and the hire purchase agreement had also been endorsed as per the record of the DTO office. Therefore, the position is that according to Parminder Singh (respondent No.2) the vehicle was sold to him by Kesar Singh on 21.8.2006 for a sum of Rs.3,35,000/-. The vehicle at that time was under loan from the financier M/s Tata Limited, B.H.T.C., Zirakpur. The financier re-possessed the vehicle on 26.8.2006 from Parminder Singh (respondent No.2). Thereafter, the seller of the vehicle Kesar Singh gave an affidavit on 11.9.2006 that the loan amount had been deposited and he would get the vehicle released on the said date. However, Kesar Singh did not give the possession of the vehicle to Parminder Singh (respondent No.2) despite the Cr. Misc.-M No.48307/2007 [5] repeated requests. On the asking of Parminder Singh (respondent No.2), Kesar Singh deposed affidavit on 20.9.2006 that he had deposited all the instalments of loan of the vehicle. According to the petitioner- Paramjit Singh, the vehicle in question had in fact been sold to him by Kesar Singh who gave possession of the vehicle along with his affidavit dated 21.2.2007 that he had received the full and final payment in respect of the Tata 407 vehicle. On the basis of the said affidavit, the DTO, Jalandhar transferred the Tata 407 vehicle in favour of the petitioner-Paramjit Singh vide entry dated 14.4.2007. On an application (Annexure-P.1) submitted by the petitioner, the DTO, Jalandhar made an endorsement (Annexure-P.1/A) on 24.9.2007 that the vehicle had been transferred in favour of the petitioner. In case FIR No.108 dated 11.5.2007 registered on the statement of Parminder Singh (respondent No.2), the Police carried out investigations and the In-charge Economic Offences Cell, Khanna conducted an inquiry. It was found in the inquiry that respondent No.2 had purchased the Tata vehicle from Kesar Singh for Rs.3,35,000/- and Rs.1,50,000/- was received at the time of sale and remaining amount of the vehicle was to be paid after completion of the papers of the vehicle. However, the financier re- possessed the vehicle as Kesar Singh after receiving the money from Parminder Singh (respondent No.2) and deposing an affidavit that he has received the amount got the Tata 407 vehicle released in his favour from the financier by depositing the instalments. The application was forwarded to the District Attorney, Ludhiana for obtaining his opinion. It was opined that Kesar Singh was owner of the Tata 407 vehicle and vide agreement dated 21.8.2006 he sold vehicle to Parminder Singh (respondent No.2) for a consideration of Rs.3,35,000/-. Parminder Singh (respondent No.2) paid Cr. Misc.-M No.48307/2007 [6] Rs.1,50,000/- as advance to Kesar Singh. Some loan, it has been mentioned in the agreement, was due for payment and it was agreed that the instalments would be paid by Parminder Singh (respondent No.2) who paid the entire amount to Kesar Singh. Kesar Singh, the seller did not deposit the amount of loan with the financier and this led the financier to take possession of the vehicle. Thereafter, Kesar Singh paid the remaining amount and took back the vehicle. It was opined that the dispute between the parties regarding the possession of the disputed vehicle was a case of civil nature and the Police is not to take any action. The application it was recommended may be filed. Parminder Singh (respondent No.2) was advised to take possession of the disputed vehicle through a civil suit. The SSP, Khanna did not agree with the opinion of the District Attorney (Legal) and ordered the SHO, Khanna to register a case. On these facts and circumstances FIR on the complaint of Parminder Singh (respondent No.2) was registered. During the pendency of the case, two applications were made before the Sub Divisional Judicial Magistrate, Khanna for release of the vehicle on sapurdari. The learned Magistrate, as already noticed, vide his impugned order ordered the vehicle to be released in favour of Parminder Singh (respondent No.2) which order is assailed by the petitioner. Leaned senior counsel appearing for the petitioner has submitted that the Tata 407 vehicle in question is entered and registered in the record of the DTO office in favour of the petitioner. Therefore, the vehicle in question is liable to be given to the petitioner. It is submitted that the learned Magistrate has gravely erred while passing the impugned order and in not considering the fact that the vehicle is registered in the records of Cr. Misc.-M No.48307/2007 [7] the competent authority i.e. D.T.O., Jalandhar in the name of the petitioner. In response, learned counsel for respondent No.2 has submitted that the Tata 407 vehicle was sold to respondent No.2 and even possession was given to him. It is thereafter that the possession was taken by the financier by re-possessing the vehicle in view of default of payment of the loan by Kesar Singh-the seller of the vehicle. However, Kesar Singh instead of returning the vehicle to respondent No.2 surreptitiously sold the same to the petitioner which it is submitted is a clear case of cheating on the part of Kesar Singh which has resulted in wrongful loss and deprivation of the vehicle to respondent No.2. After giving my thoughtful consideration to the matter, it may be noticed that the procedure for custody and disposal of property pending trial is to be dealt with and considered in accordance with the procedure provided under Section 451 Cr.P.C. which reads as under:- “451. Order for custody and disposal of property pending trial in certain cases - When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation - For the purposes of this section, “property” includes - (a) property of any kind or document which is produced before Cr. Misc.-M No.48307/2007 [8] the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.” In terms of the above provisions when any property is produced before any Criminal Court during any inquiry or trial, the Court is to make such order as it thinks fit for proper custody of such property pending the conclusion of the inquiry or trial. It is well settled that the scope of inquiry and the powers exercisable in terms of Section 451 Cr.P.C. are of a summary nature and do not, in any manner, adjudicate the civil rights of the parties. However, the discretion of the Court to make such orders as it thinks fit for the purpose of giving the custody of the property is to be based on sound reasons. The order entrusting the property on `sapurdari’ during trial or inquiry of a case is to be based on prima facie semblance of ownership which is to be recorded and reached at in the limited inquiry to be conducted by the Magistrate. In the present case, the ownership of the vehicle in the records of the DTO office, Jalandhar stands in the name of Paramjit Singh (petitioner). Section 2(30) of the Motor Vehicles Act, 1998 defines “owner” as follows:- “Owner” means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement.” Cr. Misc.-M No.48307/2007 [9] In terms of the above definition of “owner” means the person in whose name the motor vehicle stands registered. The Tata 407 vehicle admittedly stands registered in the name of Paramjit Singh (petitioner). The Supreme Court in Manoj v. Shiram Transport Finance Ltd., 2002 (2) R.C.R. (Cr.) 730 upheld an order of release of the vehicle on sapurdari pending trial in favour of the registered owner subject to the decision of the Civil Court. In Rajendra Prasad v. State of Bihar, 2002 (2) R.C.R. (Cr.) 812, the Supreme Court considered the rival claims regarding the vehicle lying in the Police compound. It was observed that the rival versions regarding the transactions relating to the vehicle were not being considered. However, the Court did not want the vehicle to remain in the compound of the Police Station exposed to heat and cold because the automobile was likely to be lost to all in such situation. To avert such situation, the custody of the vehicle was temporarily given to the appellant in the said case who was the ostensible name-holder in the registration certificate. It was held that the custody of the vehicle in favour of the person in whose name the registration certificate was, would be on behalf of the Court and the said arrangement was only till the stage when the Court passes the order regarding disposal of the property on the conclusion of the trial. In G. Jayachandra Naidu v. G. Lokamma and others, 2004 (3) RCR (Cr.) 460, it was held by the Andhra Pradesh High Court that the interim custody is to be given to the registered owner. The tractor was seized by the Police in the said case and the petitioner therein had claimed that he had purchased the tractor from his brother. However, no steps were taken by the petitioner in the said case to get the vehicle transferred in his name. Accordingly, the Cr. Misc.-M No.48307/2007 [10] interim custody was given to the registered owner of the vehicle. The legal position, therefore, is that the sapurdari of a vehicle in proceedings under Section 451 Cr.P.C. should be given to the person who is prima facie owner of the vehicle and there is some semblance of ownership in the shape that it is so recorded in the records of the registering authorities. The person in whose name vehicle stands registered in the records of the motor vehicles authorities can, therefore, be taken to be the prima facie owner of the vehicle. This, however, would be subject to determination of the rights of the parties before the Civil Court. A criminal Court is not the forum for determining the issue of title or ownership of the vehicle. However, as a temporary measure by an arrangement the vehicle in question is liable to be given to the person who is prima facie owner of the vehicle and that too on certain terms and conditions so as to provide for its safe custody and prevent its decay and deterioration. The question whether the allegations made by Parminder Singh (respondent No.2) are correct or not cannot be gone into without recording evidence. These, therefore, are to be considered by a civil Court on the basis of evidence and material that is adduced before it. In case the allegations are accepted as they are the chances of persons preparing documents before sale or even after sale of a vehicle to another person and then laying claim on the basis of documents so prepared cannot be ruled out. Therefore, the purpose of giving the vehicle in favour of a registered owner on sapurdari is to prevent any person to set up a false claim by preparing the documents before its sale or for that matter even after its sale to another person and then claiming its ownership on the basis of the prepared documents. Therefore, in order to prevent such a situation it is normally safe to give the temporary custody on `sapurdari’ Cr. Misc.-M No.48307/2007 [11] to the person who is prima facie owner of the vehicle and is recorded as registered owner in the records of the motor vehicle authorities and leave the parties to get their rights determined from an appropriate forum which would normally be the civil Court. The release of vehicle on the basis of mere allegations in the FIR would be unsafe and not workable. Therefore, the petitioner being recorded as owner of the vehicle in question with the registering authority the same is liable to be released in his favour. Accordingly, the criminal miscellaneous petition is allowed and the order dated 15.9.2007 (Annexure-P.3) passed by the learned Sub Divisional Judicial Magistrate, Khanna is set aside and quashed and the petitioner is held entitled to interim custody of the vehicle on sapurdari. The learned Sub Divisional Judicial Magistrate, Khanna shall order the vehicle to be released in favour of the petitioner on such terms and conditions as it may deem fit and the same shall remain with the petitioner till the rights of the parties are determined either in the pending trial or by the civil Court in case it is approached. It is made clear that any observations made herein shall not be construed as an expression of opinion on the merits of the case for the purpose of claiming the right of ownership of the vehicle and the same is only for the purpose of determining the present petition. January 21, 2009. (S.S. Saron) Judge *hsp*