Smt. Mahamaya Dasi v. Sanat Kumar Law And Others Opposite Parties.

1. This Rule must be made absolute. The Rule is directed against an order dated the 19th April, 1968 passed by Shri K.J Sen Gupta, Chief Presidency Magistrate, Calcutta, directing the delivery of a motor vehicle to the accused-opposite parties on a joint bond of Rupees 20,000 on condition that they would not be allowed to take the car and use it outside the jurisdiction of Calcutta without previous permission of the court.

2. The facts leading on to the present Rule can be set out in a short compass. The case brings to light an unfortunate tussle between the mother and two of her sons and the subject-matter of the dispute is an Ambassador Mark II Car. No. WBG 2448. The parties come of a respectable family of Calcutta. The complainant-petitioner, who is the mother is the widow of late Tulshi Charan Law and the two opposite parties are her sons. The late Tulshi Charan Law died leaving 6 sons and 4 daughters. Four of the sons live with the mother as also the youngest sister at 385/1, Keyatala Lane, Calcutta while two other sons who are the opposite parties in the present Rule live separate from the petitioner and others, at 10, Pretoria Street, Calcutta. Three of the daughters have been married. The complainant-petitioner is stated to have been appointed the administratrix pendente lite to the estate of the late Tulshi Charan Law in Testamentary Suit No. 9 of 1963, pending in the High Court. There have been ill-feelings for some time between the parties leading on to the two opposite parties leaving the family residence and put up at 10, Pretoria Street, Calcutta. Even a criminal case was filed at Alipore by the opposite party No. 1, Sanat Kumar Law against two of his brothers and others.

3. The present incident has taken place against this background. A complaint was filed on 16-4-68 by the complainant-petitioner before the Chief Presidency Magistrate. Calcutta, praying for process against the two accused opposite-parties under S. 406. I.P.C and also pray ins for a search-warrant for the seizure of the motor car No. WBG 2448 and making over the same, after seizure, to the petitioner on a proper bond, to be produced on call. It was averred therein that the petitioner is the registered owner of the said Ambassador Mark II Car No. WBG 2448, having purchased the same undei a hire-purchase agreement dated 28-3-67 from Bhagirathi Investment Company and that the blue-book tax-token, insurance certificate and other relevant documents all stand in the name of the petitioner. The accused persons approached her on 2-4-68 at her residence and requested her to lend the said car for a day in connection with some urgent business and without suspecting anything wrong she agreed thereto and made over the car, on the understanding that it would be returned on the following day without fail. The complainant's case, in the petition of complaint, further is that the said car was not returned as promised and on 4-4-68 when she went to No. 10, Pretoria Street, accompanied by her driver, to take delivery of the car the accused persons refused to return the car and on protest, they threatened violence, compelling the petitioner thereby to leave the place without the car. Thereafter the petitioner tried in vain to get back the car, and ultimately the accused persons denied all knowledge thereof on 15-4-68 The petitioner apprehended that the accused persons were bent on removing the car to some unknown place for disposing of the same.

4. The Chief Presidency Magistrate, Calcutta examined the complainant and her witnesses on 16-4-68 and issued summons against the accused persons under S. 406. I.P.C, fixing 11-6-68 for appearance. He also issued a search-warrant as prayed for, returnable by the same date. On 19-4-63 the accused persons appeared and were directed to be released on a P.R bond of Rs. 500 each. With regard to the motor vehicle, which in the meanwhile was seized by the police on 17-4-68, the complainant-petitioner filed an application before the Chief Presidency Magistrate, Calcutta praying that the car which was lying uncared for since its seizure, in an open place at the Park Street Police Station, and getting damaged due to exposure, to sun and rain, may be directed to be made over to her on a bond for production thereof in court on call. Another petition was also filed on the same date by the accused-opposite party No. 2 Ranjit Kumar Law, praying that the car in dispute may be delivered to him as it was recovered from his possession. In the said petition the accused Ranjit Kumar Law stated that he was the owner of a Morris Minor Car which was meant for his personal use, but the same was sold at the advice of his mother and the sale-proceeds thereof were handed over to her and that he being an officer-trainee in a well known firm of Calcutta, requires the said car for attending his factory daily. It was further averred that the car in dispute was in fact purchased from the assets of the late Tulshi Charan Lav and that the complainant has got another car No WBB 3863 for her use.

5. The Chief Presidency Magistrate by his order dated the 19th April, 1968 ultimately directed the motor car in dispute to be made over to the accused-opposite parties Nos. 1 and 2 on a bond and on terms and conditions as already mentioned above. This order has been impugned by the complainant-petitioner and forms the subject-matter of the present Rule.

6. Mr. Ananga Kumar Dhar, Advocate, appearing on behalf of the complainant-petitioner has raised various contentions based on facts as also on merits. He has controverted the finding in the order of the Chief Presidency Magistrate, Calcutta that “in that family there are three motor cars Two of them are being used by the eldest son and the mother and this disputed one was given to the accused persons who require it badly for attending the office” as based upon unwarranted hypotheses and has in this context referred to the statement made in the petition on oath by the complainant herself that she is now compelled to use a taxi because the only other car which she has is an old one and is lying in the garage in a state of disrepair. Mr. Dhar has finally contended that the petitioner holds the blue-book tax-token, insurance certificate and other relevant documents proving that she is the registered owner of the motor car and as such the same should not have been directed to be delivered to the sons for the use of one or both of them for purposes as mentioned in the impugned order. Mr. Dwijendranath Ghosh, Advocate, appearing for the accused-opposite parties Nos. 1 and 2 has made a two-fold submission. In the first place he has submitted that the car really has been purchased out of the funds of the point estate and the complainant has also received the sale proceeds of the car that had belonged to the accused-opposite party No. 2, Ranjit Kumar Law. The second contention of Mr. Ghosh is that after all this is an order passed under Section 516-A of the Cr PC and the Magistrate in the Court below having exercised his discretion in delivering the disputed car to the persons from whom found, this court need not interfere with the said order in revision. Mr. Harasit Kumar Ghosh. Advocate, appearing on behalf of the State, the opposite-party No. 3, has submitted that the impugned order passed by the Chief Presidency Magistrate, Calcutta directing the delivery of the motor car to a party who is not the registered owner thereof, is not an order which can be sustained in law.

7. In the facts and circumstances of the case I find that it is difficult to uphold the order passed by the Chief Presidency Magistrate, Calcutta. The fight between a mother and her sons may be unfortunate indeed but law is not Ethics and for the purpose of the present case, I need not concern myself with the inner springs of human thoughts but with the facts as they appear on the record. It cannot be overlooked that the subject-matter of the dispute is a motor car with regard to which there are specific provisions in the statute enjoining certain obligations and any non-conformance thereto will bring the offender within the ambit of the penalties provided for under the relevant Act and the Rules. Motor vehicles are not just ordinary “chattels personal” and the owner thereof has got rights as well as liabilities under the statute. Sections 22, 31 and 112 of the Motor Vehicles Act as well as the relevant Rules will pinpoint the same. For any deviation the ultimate owner who is neither responsible for the same nor even aware thereof would be liable to prosecution. Accordingly it is just and fair that when an order for making over the custody of an article which is a motor car is passed, the question has to be approached against the above background, as otherwise it may tend to create a Gilbertian situation. The party who is the registered owner of the vehicle but has been denied the right of possession and user of the said car would nonetheless be liable for the penalties accruing, while the car is in the custody of somebody else. It is desirable therefore in such cases that the custody of such a car should either be with a third party like a Garage upon proper terms and conditions or with the registered owner thereof. In this case, however, none of the parties appears to be eager to stand the bill of expenses if the car be sent to a recognised garage in Calcutta for being kept till the disposal of the case. In this context, a reference may be made to the relevant sections of the Code. It is undoubtedly true that the powers exercisable either under Section 516-A or under Section 517 of the Cr PC are entirely discretionary. The words “as it thinks fit” vest a discretion in the court which should be exercised judicially. The legislature has given a wide discretion to the Magistrate and unless it is clear that he has exercised it on some wrong principle, the High Court will not interfere. The previous theory of making over the custody of the article seized to the person from whom found has been given the go-by to, unless and until there are special features in the case. In a case under Section 517 of the Cr PC namely, in the case of Ramphal Tatwa v. Jasodia Malain, 40 Cal WN 862 Mr. Justice Guha and Mr. Justice Bartley held that the court “had the discretion under the law to make such an order as he thought fit for the disposal of the properties in question”. In a case under S. 516-A of the Code of Criminal Procedure namely, in the case of Brojendra Chandra De v. K.S Sama, AIR 1931 Cal 455 Chief Justice Rankin and Mr. Justice Costello held inter alia that when a complaint is made of theft regarding a property which at the time is in the possession of the person complained against, an order may be made under Section 516-A of the Cr PC for the production of the property and it? temporary custody with the complainant. A reference in this context may also be made to another case under S. 516-A of the Code of Criminal Procedure, wherein the custody claimed was that of a motor vehicle. In the case of Sardar Singh v. Swastik Financial Corporation (F) Ltd., New Delhi, 1964 (2) Cri LJ 492 (Pat). Mr. Justice Anant Singh and Mr. Justice G.N Prosad approved of the principles laid down in the case of AIR 1931 Cal 455 and held that “The certificates of registration and road permits issued by the State authorities of Bihar in pursuance of the Rules framed under the Motor Vehicles Act have a presumption that the holder of the certificate and the road permit was in possession of the vehicle. As regards the question of title or ownership, the learned Magistrate had no jurisdiction to decide it in a proceeding like the present one. The requirements of the other party whether it is for coming to the office or otherwise, cannot be equated with the rights conferred under the statute on the registered owner of a motor vehicle. For the reasons mentioned above, I hold that the order passed by the Chief Presidency Magistrate, Calcutta, in this respect cannot be supported and must therefore be set aside.

8. In the result, the Rule is made absolute; the impugned order dated 19-4-68 passed be the Chief Presidency Magistrate, Calcutta, is set aside; and he is directed to make over the custody of the motor vehicle No. WBG 2448 to the complainant-petitioner upon her executing a bond for Rs. 20,000 to produce the car in court on call and upon the condition that she will not be allowed to take the car and use the same outside the jurisdiction of Calcutta without the previous permission of the court, pending the disposal of the case in the court below. The Chief Presidency Magistrate, Calcutta, is further directed to discharge the accused-opposite parties from the bonds executed by them. The records are to go down as soon as possible.

GGM/D.V.C

9. Rule made absolute.