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1974 Supreme(Bom) 33
BOMBAY HIGH COURT
MALVANKAR AND AGGARWAL, JJ.
Bombay Cycle and Motor Agency Ltd., Petitioner
Versus
Bhagwanprasad Ramraghubir Pandey and others, Respondents.
Criminal Appln. No. 982 of 1972
Decided On:- 13 -2 -1974.
Ashok N. Vyas i/b M/s. Daphtary Perreira and Diwan, Attorneys, for Petitioner; V.T. Gambhirwala, Asst. Govt. Pleader, for the State Respondent No. 3.
Headnote:
CRIMINAL PROCEDURE CODE - Section 561-A - Inherent powers of the High Court - Setting aside of order of disposal of property - Confiscation of vehicle under Bombay Prohibition Act, 1949 - Applicant not given an opportunity of being heard - Violation of principles of natural justice - Abuse of process of Court - Rehearing of appeal ordered.
Fact of the Case:
The applicant, a hire-purchase company, had put a vehicle in possession of respondent No. 1 under a hire purchase agreement. Respondent No. 1 failed to pay the instalments and the applicant terminated the agreement. The vehicle was seized by the Police in connection with an offence under the Bombay Prohibition Act, 1949. The applicant applied for the return of the vehicle, but the application was rejected by the trial Court. The trial Court also passed an order confiscating the vehicle to the State. The order was confirmed by the Sessions Court and by the High Court. The applicant filed an application under Section 561-A of the Criminal Procedure Code, praying for setting aside the order of disposal of the vehicle and for restoration of possession of the same.
Finding of the Court:
The High Court held that the applicant was entitled to be heard before the order of confiscation of its vehicle was passed by the Court. The Court also held that the order of confiscation was obtained by abuse of process, though inadvertently, because no notice was issued to the applicant and it was not given an opportunity to be heard. The Court further held that it had inherent power under Section 561-A of the Code to set aside the order and order rehearing afresh of the appeal.
Issues: 1. Whether the applicant was entitled to be heard before the order of confiscation of its vehicle was passed by the Court? 2. Whether the order of confiscation was obtained by abuse of process? 3. Whether the High Court had inherent power under Section 561-A of the Code to set aside the order and order rehearing afresh of the appeal?
Ratio Decidendi: 1. Yes, the applicant was entitled to be heard before the order of confiscation of its vehicle was passed by the Court. Section 99 of the Bombay Prohibition Act, 1949, which provides for confiscation of vehicles used in the commission of offences under the Act, requires the Court to hear the person claiming any right to the vehicle and the evidence produced by him in support of his claim before passing an order of confiscation. 2. Yes, the order of confiscation was obtained by abuse of process. The applicant was not given a notice of the confiscation proceedings and was not given an opportunity to be heard. This was a violation of the principles of natural justice and amounted to an abuse of process. 3. Yes, the High Court had inherent power under Section 561-A of the Code to set aside the order and order rehearing afresh of the appeal. Section 561-A preserves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
Final Decision: The application was allowed. The order of confiscation of the vehicle was set aside and the case was remanded back to the trial Court for disposal according to law, after giving an opportunity to the parties to adduce evidence on the issue as to whether or not the vehicle could be confiscated to the State.
MALVANKAR, J. :- This is an application by Bombay Cycle and Motor Agency Ltd., under Section 561-A of the Criminal Procedure Code, for setting aside the order regarding the disposal of property, passed in Criminal Appeal No. 499 of 1970 and Criminal Revision Application No. 320 of 1070, by this Court and for restoration of possession of the property to the applicant. It arises this way :
2. The applicant is a company registered under the Indian Companies Act, 1913 carrying on business inter alia of hire-purchase of vehicles. The applicant alleged that they were the owners of a vehicle viz., "Dodge Model B6 D300-133" petrol chassis, with four years of the value of Rs. 24,219-10, supplied to them M/s. Premier Automobiles Ltd., Bombay, under Sales Invoice dated 2nd May, 1963. Under a hire purchase agreement entered into by respondent No. 1, the vehicle was put in his possession. The said agreement dated 13th May, 1968, provided that in the event of respondent No. 1 paying the initial hire charges as well as monthly hire charges of Rupees 1,085/- per month for a period of 18 months from 13th July, 1968 to 13th December, 1969 and other amounts under the said agreement aggregating to Rupees 28,330/- he shall have an option to purchase the said vehicle on further payment of Rs. 10/- as provided under the said agreement. The agreement also provided, that the applicant shall remain the owner of the vehicle and respondent No. 1 shall remain in possession as a bailee of the applicant and shall not have any proprietary rights or interest in the said vehicle, unless he exercised the option of purchasing the vehicle by payment of the whole amount due under the said agreement and the petitioners made over to him all their rights, title and interest in the vehicle. According to the applicant, it was entitled to terminate the agreement by notice if respondent No. 1 failed to pay the instalments on the dates they became due or committed breach of the agreement. The Road Transport Officer, Bombay also issued the registration certificate in respect of the said vehicle (registration No. MRC 9203) showing the applicant as the Hire Purchase Company. The applicant alleged that the agreement was entered into between it and respondent No. 1 on the latter's representation made to the applicant that he was carrying on business having an income of Rs. 700/- per month, that he was the owner of some immovable property worth about Rupees 2,00,000/- and that he wanted to use the said vehicle for private use. Relying upon this representation, the applicant entered into the aforesaid agreement with him. Accordingly in pursuance of the agreement, the vehicle was put in possession of respondent No. 1, who thereafter fitted on it a body at a cost of about Rs. 8,000/-. Thereafter respondent No. 1 paid initial hire charges and five instalments from July, 1968, to November, 1968, and neglected to pay the remaining instalments of hire charges with interest thereon amounting to Rs. 14,105/-. The applicant, therefore, terminated the hire purchase agreement on 3rd/4th April, 1969 and became entitled to the possession of it in accordance with the terms of the agreement.
3. In February, 1969, the applicant came to know that the Police, Authorities of the Anti-Corruption and Prohibition Intelligence Bureau, Thana, had seized the said vehicle from respondent No. 1's possession on the allegation that it was used by him for committing offence punishable under the Bombay Prohibition Act, 1949. In April 1969, the applicant also came to know that the Police had filed a criminal case being Criminal Case No. 289 of 1969 in the Court of Judicial Magistrate, First Class, Panvel against respondent No. 1 and also respondent No. 2 for offences punishable under the Bombay Prohibition Act, 1949. On 8th May, 1969, therefore, the applicant filed an application under Section 516-A of the Criminal Procedure Code, in the Court of Judicial Magistrate, First Class. Panvel for possession o
