Monthly Archives: January 2013

Recovery of Possession of Vehicle by Financier – Whether an offence

In Sardar Trilok Singh v. Satya Deo Tripathi , the Hon’ble Supreme Court examined a case wherein the truck had been taken in possession by the financier in terms of hire purchase agreement, as there was a default in making the payment of instalments. A criminal case had been launched against the financier under Sections 395, 468, 465, 471, 120-B/34 IPC. The Court refused to exercise its power under Section 482 CrPC and did not quash the criminal proceedings on the ground that the financier had committed an offence. However, reversing the said judgment, the Court held that proceedings initiated were an abuse of process of the court. The dispute involved was purely of civil nature, even if the allegations made by the complainant were substantially correct. Under the hire-purchase agreement, the financier had made the payment of huge money and he was in fact the owner of the vehicle. The terms and conditions incorporated in the agreement gave rise in case of dispute only to civil rights and in such a case, the civil court must decide as to what was the meaning of those terms and conditions.
In K.A. Mathai v. Kora Bibbikutty , the Court had taken a similar view holding that in case of default to make payment of instalments the financier had a right to resume possession even if the hire-purchase agreement does not contain a clause of resumption of possession for the reason that such a condition is to be read in the agreement. In such an eventuality, it cannot be held that the financier had committed an offence of theft and that too, with the requisite mens rea and requisite dishonest intention. The assertion of rights and obligations accruing to the parties under the hire-purchase agreement wipes out any dishonest pretence in that regard from which it cannot be inferred that the financier had resumed the possession of the vehicle with a guilty intention.
In Charanjit Singh Chadha v. Sudhir Mehra , the Court held that the recovery of possession of the vehicle by the financier/owner as per terms of the hire-purchase agreement, does not amount to a criminal offence. Such an agreement is an executory contract of sale conferring no right in rem on the hirer until the transfer of the property to him has been fulfilled and in case the default is committed by the hirer and possession of the vehicle is resumed by the financier, it does not constitute any offence for the reason that such a case/dispute is required to be resolved on the basis of terms incorporated in the agreement.
In view of the above, the purchaser remains merely a trustee/bailee on behalf of the financier/financial institution and ownership remains with the latter. Thus, in case the vehicle is seized by the financier, no criminal action can be taken against him as he is repossessing the goods owned by him. Anup Sarmah v. Bhola Nath Sharma, (2013) 1 SCC 400.

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Investigation under CrPC – Meaning of

Section 2 (h) of the CRPC reads as under:
2.(h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;
Section 2(h) CrPC defines “investigation” and it includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. It ends with the formation of the opinion as to whether on the material collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by filing of a charge-sheet under Section 173. Union of India v. Prakash P. Hinduja .
A three Judge Bench in H.N. Rishbud v. State of Delhi , while dealing with investigation, has stated that under the Code, investigation consists generally of the following steps:
(a) Proceeding to the spot,
(b) Ascertainment of the facts and circumstances of the case,
(c) Discovery and arrest of the suspected offender,
(d) Collection of evidence relating to the commission of the offence which may consist of:
(i) The examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit,
(ii) The search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and
(e) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a chargesheet under Section 173.
In Adri Dharan Das v. State of W.B. , it has been opined that:
“arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and connection of other persons, if any, in the crime.”
In Niranjan Singh v. State of U.P. , it has been laid down that investigation is not an inquiry or trial before the Court and that is why the Legislature did not contemplate any irregularity in investigation as of sufficient importance to vitiate or otherwise form any infirmity in the inquiry or trial. In S.N.Sharma v. Bipen Kumar Tiwari , it has been observed that the power of police to investigate is independent of any control by the Magistrate. In State of Bihar v. J.A.C. Saldanha , it has been observed that there is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment and further investigation of an offence is the field exclusively reserved for the executive in the Police Department. Manubhai Ratilal Patel v. State of Gujarat and Others,(2013) 1 SCC 314.

Further Investigation
The mere undertaking of a further investigation either by the investigating officer on his own or upon the directions of the superior police officer or pursuant to a direction by the Magistrate concerned to whom the report is forwarded does not mean that the report submitted under Section 173 (2) is abandoned or rejected. It is only that either the investigating agency or the court concerned is not completely satisfied with the material collected by the investigating agency and is of the opinion that possibly some more material is required to be collected in order to sustain the allegations of the commission of the offence indicated in the report. Vipul Shital Prasad Agarwal v. State of Gujarat and another, (2013) 1 SCC 197.

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