In determining possession under Section 457 of the Cr.P.C., the court must assess which party is best entitled to possession rather than solely focusing on ownership.

Order :

1. Heard learned counsel for the parties and gone through the order under assail passed by Court of Magistrate as well as Court of Revision.

2. Briefly stated the facts of the case are that an FIR got lodged at the instance of the Noratmal, the petitioner herein, alleging inter alia that he was in contact with the respondent Narendra Kumawat and under the pretext of trust, obtained his signature on a blank stamp paper and also took away the possession of the vehicle. The accused had allegedly misused the stamp paper and fabricated it into an agreement to sell.

3. The facts narrated in the FIR revealing that there was a transaction in between the complainant Noratmal and one Lala Ram who happens to be father of Narendra Kumawat. Some money was paid to the complainant, Noratmal, as part payment for the sale consideration of the Car. Some documents were also handed over to the respondent, Lala Ram Kumawat, and Narendra Kumawat. Since there was hypothication, therefore, the vehicle could not be transferred in Transport Department. The vehicle was handed over to the petitioner by the police during the investigation.

4. The learned Magistrate observed that the petitioner was not entitled to get custody of the vehicle and therefore, she passed the order under assail dated 17.11.2017 directing the police to take over the possession. The learned Court of Revision concurred with the opinion of the learned Magistrate. Hence, the petitioner approached this Court. It is apprised to this Court that the possession of the vehicle is still lying with him.

5. In the given circumstances, this Court feels that while entertaining a plea under Section 457 of the Cr.P.C ., a criminal Court is only supposed to examine as to which party is best entitled to get back the possession. The ownership may be one aspect, but another aspect would be the entitlement of retaining the possession. The fact as it is emanating before this Court that a transaction took place in between the complainant and Narendra Kumawat and Lala Ram Kumawat and possession was handed over.

6. Considering the facts and circumstances of the case, this Court feels that the learned trial Court ought to have passed an order in respect of delivery of possession after ascertaining as to which party is best entitled to get back possession of the property. 7. Accordingly, the instant misc. petition is disposed of with a direction that the order dated 17.11.2017 passed by learned Additional Chief Judicial Magistrate, Jaitaran, District Pali in C.R. Case No. 342/2017 and order dated 07.12.2017 passed by learned Additional Sessions Judge, Jaitaran, District Pali in Criminal Revision No.85/2017 are quashed and set aside. The learned Magistrate shall here both the parties and their respective claims and then pass a reasoned and speaking order with clear findings that which party would be the best entitled to get possession of the property. It is made clear that the learned Magistrate shall not pass an order stationing the vehicle in police custody since doing so would certainly be deterioration of the vehicle, which would constitute a loss of the national asset.

8. The stay petition also stands disposed of.