This Revision Application has been filed under the following circumstances:-- Applicant. Haji Ghulam Kadir purchased a 1969 Model Toyota Cat from Messrs Mirza Motors Company, a concern dealing with automobiles at Hyderabad. The price of the car was fixed at Rs.
24,900, and the case of the applicant is that out of the total price a sum of Rs. 12,000 was paid and the balance was payable by monthly instalments of Rs. 1,075.00. Admittedly the car was registered in the name of the seller Company although the documents were given to applicant. In fact as would appear the agreement between the applicant and Messrs Mirza Motors was that the car was to be registered in the name of applicant only after full payment was made.
2. The applicant's case further is that he paid four monthly instalments aggregating Rs. 4,300 after the initial payment of Rs. 12,000. It appears that some dispute arose between the, seller and the applicant/buyer and on account of that the vehicle was forcibly taken away from the possession of the applicant. The report was lodged by the applicant at the police station; but the police did not send tip any person to stand trial. However the vehicle in question was seized by the police and the same was produced before the Assistant Commissioner and Sub-Divisional Magistrate, Saddar Sub-Division, Hyderabad for disposal under the provisions of section 523, Cr. P. C. The Sub- Divisional Magistrate restored the vehicle to the applicant by his order dated 29-8-1970. The order of restoration, a copy whereof has been filed as Annexure 'B' makes no mention of the terms on which the vehicle was given to the applicant but the applicant has filed a certified copy of a personal bond executed by him in regard to production of the vehicle. It will be useful to reproduce the terms of the personal bond as the same shall be referred to by me in the latter portion of this judgment: "I, Haji Ghulam Qadeer son of Sher Muhammad Khero resident of Dadu now at Latifabad, Hyderabad, Bungalow No. 265; Unit No. 9, Latifabad do hereby bind myself to pay to Government of Pakistan the sum of Rs. 25,000 (Rs. Twenty-five thousand only) in case any claim proved in respect of the property restored to me by the Court and also bind myself to pay the value equivalent to the said property to the claimant.
(Sd.) Ghulam Kadir Khero Signature of Executant."
3. Against the order of delivery of the vehicle to the applicant, one Ghulam Hussain moved the Additional Sessions Judge, Hyderabad. It is not clear whether this was a Revision application or Miscellaneous Applica--petition. For the purpose of this application I need only state that when this application or appeal was fixed before the Sessions Court on 23-4-1971 the present applicant did not produce the vehicle, and had sent a telegram expressing his inability to produce the vehicle on account of the death of his brother. On the basis of this telegram which was sent by the applicant to his brother obviously for the purpose of submitting an application for adjournment, an application was made by the Advocate for the present applicant in the Court of Session. This application for adjournment was placed before the learned Additional Sessions Judge who while refusing the prayer for adjournment took action against the applicant in the shape of forfeiture of the bond in the sum of Rs. 25,000. Being aggrieved by this order of the Additional Sessions Judge the applicant has filed this Revision Application.
4. The contention of the learned Advocate for the applicant is in two--fold firstly that the Sessions Court had no jurisdiction to hear any appeal or application against the order of the Sub-Divisional Magistrate and secondly that the order of forfeiture is illegal.
5. The order of the Sub-Divisional Magistrate was one under section 523, Cr. P. C. This section deals with disposal of property suspected to be stolen and which has been seized under such belief by the Police Officer or when the owner of the property seized by the police is not known. It appears that the police had originally seized this car considering the, same to be stolen property but since the police did not send up any accused to stand trial, they had obtained the order of the Magistrate in regard to disposal of the vehicle in question. On such motion being made by police, the Sub-Divisional Magistrate had passed an order under section 523, Cr. F. C. The question then arises as to what is the remedy, if any, of a party aggrieved by an order, under section 523, Cr. P. C.
Under section 520, Cr. P. C. a Court of appeal, confirmation, reference or revision has got jurisdiction only in regard to such orders as have been passed under section 517, 518 or 519, Cr. P. C. This order of the Sub-Divisional Magistrate was one under section 523, Cr. P. C. And, therefore, it was no subject to jurisdiction under section 520, Cr. P. C. In that case the only available remedy to any aggrieved party was to move by way of revision or to approach the civil Court: As far as revisional jurisdiction is concerned, that vests in the High Court and not in the Court of Session, which at the most is a Court competent only to make a reference to the High Court. The only interim order that a Sessions Court can pass while dealing with revisions is an order of suspending a sentence. The Sessions Court slid riot have any power to deal with the property. Moreover, the terms of the bond which I have reproduced above clearly show that the applicant was not bound to produce the vehicle and had only bound himself to forfeit Rs. 25,000 to the State if and when a claim to respect of the property in question was proved in-a Court. The operation of the forfeiture was contingent upon a finding which defeated the claim of the applicant and established the claim of the opposite-party. In the order of the Additional Sessions Judge no such finding has been given.
6. In the result, I find that neither the bond was conditioned to provide for production of the vehicle nor has it been established that the vehicle had to be given, to some other party. On the other hand I am clearly of the view that the order of the Additional Sessions Judge is extremely harsh. On the application made by applicant for adjournment of the case on the ground of the death of his brother, the learned Additional Sessions Judge went to the extent of not only rejecting the application but penalising the applicant to the extent of Rs. 25,000. Such an order appears to be absolutely unjustified and must be set aside.
7. In the result, this Revision Application is allowed. The matter shall be sent back to the Additional Sessions Judge to initially consider whether he has jurisdiction at all to proceed in the matter and if he comes to .The conclusion that he does have such jurisdiction, he shall proceed in accordance with law. In the meantime the vehicle, which is in custody of the applicant, shall be retained by him.