Criminal Application No.1779 of 2000,Criminal Application No.1780 of 2000

8th December, 2000

Petitioner Counsel: Shri. P.F.PATANI
Respondent Counsel: Shri. V.B.NAYAK,Shri. R.F.TOTALA

Cases Cited:
Amar Nath vs. State of Haryana, AIR 1977 SC 2185 [Para 3]
V.C.Shukla vs. State, AIR 1980 SC 962 [Para 3]
Raju vs. State of Rajasthan, 1992 Cri.L.J. 723 [Para 3]
Hasmukh vs. Sheela Dadlani, 1981 Mh.L.J. 304 [Para 3]
Madhu Limaye vs. State of Maharashtra, AIR 1978 SC 47 [Para 3]
K.K. Patel vs. State of Gujrat, 2000 ALL MR (Cri) 1232 (S.C.)=2000(6) SCC 195 [Para 3]
Raj Kapoor v. State (Delhi Admn.), AIR 1980 SC 258 [Para 3]
T.Narayanswamy vs. State, 1993 Cri.L.J. 3109 [Para 3]
Ram Lachhan vs. State of U.P., 2000 Cri.L.J. 2770 [Para 3]
Rajendra Kumar vs. Uttam, 1999(3) ALL MR 232 (S.C.)=1999(3) SCC 134:1999(2) Mh.L.J. 118 [Para 3]
Virendrakumar J. Handa V. Dilawarkhan Alij Khan, 1992 Cri.L.J. 2476 [Para 3]
Jagnnath Bapu Shirsat vs. State of Maharashtra, 2000 ALL MR (Cri) 690=2000(2) Mh.L.J. 605 [Para 3]
R.P.Kapur vs. State of Punjab, AIR 1960 SC 866 [Para 8]
Mohanlal Maganlal Thakkar vs. State of Gujrat, AIR 1968 SC 733 [Para 16]
Parmeshwari Devi vs. State, AIR 1977 SC 403 [Para 16]
A.S.S. Ahmed vs. Commissioner of Police, AIR 1970 Madras 220 [Para 18]

JUDGMENT

JUDGMENT :- In both these applications, preliminary point of law regarding maintainability of the applications, is being raised by the respondents and the same were heard together on the said point and, therefore, the same are being dealt with by this common order in both the applications.

2. The preliminary point raised in both the petitions is whether the order passed under section 457 of Cr.P.C. directing temporary custody of the vehicle to a party is an interlocutory order within the meaning of said expression under section 397 of Cr.P.C., or not ?

3. The facts in brief, relevant for the decision, are that the respondent no.2 is the step mother of the petitioner. The vehicle number MH 20/N-0444 being Zen Car, originally belonged to the father of the petitioner. The father of the Petitioner expired on 21.4.2000 and on his death, the said vehicle came to be transferred in the name of the respondent no.2 in the registration office. On 10.8.2000, the respondent no.2 lodged complaint with the police that the petitioner, in collusion with the R.T.O. and the uncle of the petitioner by name Rajendra, prepared forged documents and thereby, got the said vehicle transferred in his name in the registration office. On the other hand, it is the case of the petitioner that the transfer was with the consent of the respondent no.2. The petitioner and his uncle were arrested but, later on released on bail by the learned J.M.F.C. Mean while, the police seized the said vehicle from the custody of the petitioner. Thereafter, two applications came to be filed for the custody of the said vehicle, one by the petitioner and the other by the respondent no.2. By the impugned common order passed in both the said applications, the trial Court allowed the application filed by the respondent while dismissed the application filed by the petitioner. The contention of the respondent is that the impugned order not being an interlocutory order, the petitioner has alternative efficacious remedy of Criminal Revision Application under section 397 of Cr.P.C. to the Sessions Court and without exhausting the said remedy, there is no case made out for invoking extraordinary jurisdiction of this Court either under section 482 of Cr.P.C. or under Article 227 of the Constitution of India. The contention is seriously disputed by the learned Advocate for the Petitioner. Both the lawyers have cited various decisions in the matter in support of their rival contentions and, they are :

1. Amar Nath V. State of Haryana (AIR 1977 SC 2185).

2. V.C.Shukla V. State (AIR 1980 SC 962).

3. Raju and others V. State of Rajasthan (1992 Cri.L.J. 723)

4. Hasmukh V. Sheela Dadlani (1981 Mh.L.J. 304).

5. Madhu Limaye V. State of Maharashtra (AIR 1978 SC 47).

6. K.K.Patel v. State of Gujrat and another (2000(6) SCC 195).

7. Raj Kapoor V.State (Delhi Admn.) (AIR 1980 SC 258).

8. T.Narayanswamy V. State (1993 Cri.L.J. 3109).

9. Ram Lachhan V. State of U.P. (2000 Cri.L.J. 2770).

10. Rajendra Kumar V. Uttam (1999(2) Mh.L.J.118 : 1999(3) ALL MR 232 (S.C.)) = 1999(3) SCC 134.

11. Virendrakumar J. Handa V. Dilawarkhan Alij Khan (1992 Cri.L.J. 2476).

12. Jagannath Bapu Shirsat V. State of Maharashtra & others (2000(2) Mh.L.J. 605 : 2000 ALL MR (Cri) 690).

4. Before deciding the controversy in the matter, therefore, it would be appropriate to scan through the decisions relied upon by the learned Advocates. In Amar Nath's case (supra) the Apex Court while considering the scope of the expression "interlocutory" order in Section 397(2) of Cr.P.C., has held that,

"It seems to us that the term "interlocutory order" in S.397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order because that would be against the very object which formed the basis for insertion of this particular provision in S.397 of the 1973 Code."

The said ruling was given after considering the background in which the said provision was introduced in the Code and bearing in mind that concept of an interlocutory order qua the revisional jurisdiction of the High Court was completely foreign to the earlier Cr.P.C. The Apex Court had also considered the scope of similar expression appearing in various statutes including the Code of Civil Procedure, Letters Patent of High Courts and other like statutes as well as a term "interlocutory order" in Webster's New World Dictionary.

5. In V.C.Shukla's case (supra), the Apex Court while considering as to whether or not the term "interlocutory order" used in Section 11(1) of the Special Courts Act, 1979 should be given the same meaning as disclosed from the similar term appearing in Section 397(2) of the Code, held that:

"The essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the suit or collateral to the issue sought but is not a final decision or judgment on the matter under issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment."

While summing up, it was observed therein that:

"The natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all."

It was further observed that:

"This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having resort to Criminal Procedure Code or any other statute. That is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes, mentioned above, and this is what the term interlocutory order means when used in s.11(1) of the Special Codes Act.

6. In Raju and others case, the learned Single Judge of Rajasthan High Court has held that:

"........any order of moment, which substantially affects rights of the parties cannot be called an interlocutory order at all."

The said observation has been made after considering the Apex Court's ruling in Amar Nath's case.

7. In Hasmukh J. Jhaveri's case, the learned Single Judge of this Court has held that an order which decides or even touches the important rights or the liabilities of the parties cannot be held to be an interlocutory order. An order which substantially affects the rights of the parties or decides certain rights of the parties cannot be termed as interlocutory order. The orders which adjudicate or even affects either the rights of the parties or even any particular aspect of the trial or proceedings cannot be termed as an interlocutory order.

8. In Madhu Limaye's case, the Apex Court while considering the scope of the expression "interlocutory order" in Section 397 of the Code and referring to the earlier decision of the Apex Court in R.P.Kapur v. State of Punjab (AIR 1960 SC 866) as well as Halsbury's Laws of England, has observed that an interlocutory order, though not conclusive of the main dispute, may be an interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals and that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of section 397(2). That was the case wherein, in a complaint for commission of offence punishable under section 500 I.P.C., the validity and legality of the trial was sought to be challenged by the accused and the Sessions Judge had ordered framing of charge against the appellant Madhu Limaye under Section 500 I.P.C. The appellant, thereupon, challenged the order of the Sessions Judge in the revision application filed by him in the High Court and the High Court had held that the revision application was not maintainable in view of the provisions contained in subsection (2) of section 397 of Cr.P.C.

9. In K.K.Patel's case, the Apex Court has held that:

"It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage."

After refering to the decisions of the Apex Court in the cases of Amar Nath, Madhu Limaye, V.C.Shukla and Rajendra Kumar Sitaram Pande, it was observed that:

"The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in section 397(2) of the Code."

The Apex Court, in the said case, was dealing with the matter wherein the Deputy Superintendent of Police had filed a complaint before the Metropolitan Magistrate against two police officers, one of them being Superintendent of Police and Dy. Superintendent of Police alleging commission of offences under sections 166, 167, 176, 201, 219, 220, 342, 417 r.w. sections 120-B, 34 and 109 of I.P.C. along with the offence punishable under section 147-G of the Bombay Police Act. On issuance of process by the Metropolitan Magistrate, the accused filed application for their discharge on the ground of absence of sanction to prosecute them. The application was dismissed by the Metropolitan Magistrate which was challenged by way of revision application before the Sessions Court and the Sessions Court, by its order upholding the objection, quashed the proceedings against the accused. The said order of Sessions Court was challenged before High Court. The learned Single Judge of the High Court held that no revision was maintainable on account of bar contained in under section 397(2) of Cr.P.C. While holding the decision of the High Court to be erroneous, the above referred observations were made by the Apex Court.

10. In Virendrakumar J. Handa's case, the learned Single Judge of this Court has held that the order directing the temporary custody of the property passed by the Magistrate in the said case did not fall in the nature of intermediate category and it was an interlocutory order pure and simple, since the order of the Magistrate did not determine any issue of moment nor could it be said to prejudice the rights of either party.

11. In Raj Kapoor's case, the Apex Court has held that:

"Not even section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Still, a general principle pervades this branch of law when a specific provision is made; easy resort to inherent power is not right except under compelling circumstances."

It has been observed that:

"Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same code."

12. In T.Narayanswamy's case, the learned Single Judge of Karnataka High Court has held that:

"The Provisions of S. 451, Cr.P.C. empowers the Court to make such order as necessary for interim custody of the property produced before the Court during the enquiry and trial and any order passed under S.451 Cr.P.C., so far as that stage is concerned, would be final between the parties, in that it concludes who among the contending parties would be entitled to the interim custody and is final as between the contending parties and is therefore open to revision."

13. In Ram Lachhan's case, the learned Single Judge of Alahabad High Court while dealing with the revision application against the order allowing the revision application by the lower revisional Court against the order of the Magistrate ordering attachment of the house, has observed that such an order of the Magistrate can not be held to be an interlocutory order but, it is an intermediatory order. It was held that by the said order, attachment of the property could easily have been effected to and the respondent could have been divested of his possession and it is to the common knowledge that such proceedings are generally initiated by persons, who are desirous of dispossessing someone out of his lawful possession.

14. In Rajendra Kumar Sitaram Pande's case, it was held that:

"An order of the Magistrate directing issuance of process is not an interlocutory order. It is an intermediate order or quasi-final order and revisional jurisdiction under section 397 of the Criminal Procedure Code can be exercised against the same."

15. In Jagannath Bapu Shirsat's case, the learned Single Judge of this Court has held that under section 457 of Code the Magistrate is required to consider the better right to possess the property. The Magistrate is not required to decide the question of title. The learned Single Judge of this Court in Virendrakumar J. Handa's case has held that the order directing temporary custody of property was interlocutory one and as such was not revisable u/s. 397(2) nor appealable under any express provisions of Cr.P.C.

16. Going through the above referred various decisions of the Apex Court and the High Courts, the law on the point as to under what circumstances an order can be said to be an interlocutory order, can be summerised by quoting, at the cost of repetition, the observations of the Apex Court in Amar Nath's case that any order which substantially affects the rights of the accused or decides certain rights of the parties, cannot be said to be an interlocutory order so as to bar revision application under section 397(2) of the Code. In fact, this is the sum and substance of all the rulings of the Apex Court on the point in issue. This is also clear from two more decisions of the Apex Court, one in the matter of Mohanlal Maganlal Thakkar v. State of Gujrat reported in AIR 1968 SC 733) and in the matter Parmeshwari Devi v. State and another reported in (AIR 1977 SC 403). It was held in Mohanlal's case that an interlocutory order though not conclusive of main dispute, may be conclusive as to the subordinate matter with which it deals and in Parmeshwari Devi's case, it was held that an order may be conclusive with reference to the stage at which it is made and it may also be conclusive as to person who is not a party to the inquiry or trial against whom it is directed. If one reads both these decisions of the Apex Court along with the decisions in the matter of Amar Nath's case then it is apparent that, the orders which decide the issues of moment, as a result, affect rights of parties, cannot be classified as interlocutory orders within the meaning of said expression under section 397(2) of the Code.

17. Section 457 of Cr.P.C. provides that whenever the seizure of the property by any police officer is reported to a Magistrate under the provisions of the Code and such property is not produced before the Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. As against this, section 451 provides that when any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit to the proper custody of such property pending the conclusion of the inquiry or trial, and if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. There is basic difference between the two provisions dealing with the disposal of the property. Section 451 refers to the disposal of the property during the pendency of the inquiry or trial and when the property is produced before the Court whereas, Section 457 of the Code refers the situation when the property is seized by the police and the fact of seizure of the property is reported to the court but is not produced before the Court. Secondly, under section 451, basically, the property is not to be disposed of as such but, custody thereof is to be given during the pendency of inquiry or trial except in cases where it is found expedient to dispose of property on account of the property being subject to speedy or natural decay or for some justifiable reasons, whereas, in case of section 457, basically the property is to be disposed of or delivered to a person who is entitled to the possession thereof and only in case such person who is entitled to the possession thereof cannot be ascertained, then the property can be ordered to be given in custody of an appropriate person for the purpose of its production as and when necessary. Even while disposing the property under section 457, the Courts may direct production of such property in the Course of any such inquiry or trial.

18. Bearing in mind various decisions of the Apex Court on the point of the scope of the expression "interlocutory order", used in section 397(2) of the Code, it is apparent that in order to classify any order as interlocutory order within the meaning of said provisions, such order should not be an order of moment nor it should affect rights of the parties in any manner. This being the law, there cannot be a general proposition that every order passed under section 457 has necessarily to be an interlocutory order within the meaning of said expression in the said section of the Code. Each order will have to be considered depending upon the facts of the case, the scope of the order and the effect thereof. For example, in a case where the subject matter of the order is a property which can be put to an use by the person to whom the custody thereof is given, and out of such use the possessor thereof can derive certain benefits, the order granting custody of such property invariably cannot be said to be an interlocutory order not it can be said that such order would not affect the rights of the parties. When the vehicle can be put to an use and the party possessing the vehicle can enjoy benefits out of such use of the vehicle, then he can do so only because the Court by its order had entrusted the possession of the vehicle with him or her. The possession of the vehicle, therefore, having been entrusted on account of entitlement to possess the vehicle, certainly it would be a decision on the point of right to possess the vehicle even if such a right is decided for a temporary period during the pendency of the trial. The Madras High Court in the matter of A.S.S. Ahmed v. Commissioner of Police reported in (AIR 1970 Madras 220) has held that once the property is seized by the Police irrespective of the fact whether the investigation by the police disclosed an offence or not in relation to the property, the Court is empowered to dispose of such property under section 523 of the Cr.P.C., 1898. Section 523 of that Code corresponds to section 457 of the new code. The Madras High Court has further held that while disposing the property, the Court has absolute discretion to pass an order as it thinks fit for the disposal of such property but, if it orders delivery of the property, then it has to deliver it to the person entitled to the possession thereof. The words used in Section 523 of Cr.P.C. (old) and section 457 of Cr.P.C. (new) "the person entitled to possession" cannot be equated with the actual possession nor they can be equated with the expression "person from whom the property is seized or taken". A person may be in lawful possession at the time it was seized though he may not commit any offence and in that situation, it cannot be said that he cannot be entitled to possession of the property. The expression "entitled to possession" discloses the intention of legislature to mean lawful possession. Being so, as has been held by the learned Single Judge of this Court in the matter of Jagannath Bapu Shirsat, the Magistrate is not required to decide the question of title while disposing the property under section 457 of Cr.P.C. Nevertheless, he is required to decide the point as to whether the person claiming for possession of the property is entitled to possession of the same. Being so, an order deciding the issue of entitlement for possession of the property cannot be refused to be classified as an order of moment and it can not be said that such an order will not affect rights of the parties.

19. However, placing reliance in the judgment of the learned Single Judge of this Court in the matter of Virendrakumar and followed by another learned Single Judge of this Court in Jagannath Bapu Shirsat's case it is strenuously argued by the learned Advocate for the petitioner that an order granting temporary custody of the vehicle is an interlocutory order within the meaning of said expression in Section 397(2) of the Code. Perusal of the decision in Virendrakumar's case discloses that the learned Single Judge therein had held thus.-

"I am not in a position to accept his contention that the order passed by the learned Magistrate was an order of the nature falling within the intermediate category as contemplated by the said Supreme Court judgments. In my view, the learned Magistrate's order does not determine any issue of moment, nor does it determine the rights of either party, nor can it be said to prejudice the rights of either party. Mr.Samant's contention that by the said order, the right of possession of the accused is disturbed or affected does not cut ice. All interim orders, in their impact, must necessarily affect some party or the other, as they are obviously in favour of one and operate against another. By this criterion, every interim order must necessarily fall into the intermediate category as contemplated by the Supreme Court. In my view, the present order does not fall in the intermediate category and it is an interlocutory order pure and simple."

20. The observations in the decision in Jagannath Bapu Shirsat's case are to the effect that :

"The Single Judge of this Court has held in the case of Virendrakumar (cited supra) that the order directing temporary custody of the property is an interlocutory order and as such, is not revisable under section 397(2) nor appealable under any express provision of the Criminal Procedure Code."

21. Perusal of the judgment in Virendrakumar's case discloses that the property which was seized by the police, pursuant to the filing of the charge sheet, before the same property was produced before the Court, the party to the proceeding being complainant, had filed application before the Magistrate asking for temporary custody of the jeep in question expressing willingness to produce the said jeep as and when required by the Court. The learned Single Judge has held that by the order of delivery of temporary custody of the jeep, the Magistrate had not determined any issue of moment nor had determined rights of the parties. The order was passed solely on the ground that the jeep was registered in the name of the petitioner in the registration records and as ownership of the jeep was disclosed in favour of the petitioner, the same was ordered to be delivered in temporary custody of the petitioner. The decision discloses that the order of the Magistrate was held to be an interlocutory order, on the premises that it did not determine any issue of moment nor it determines rights of either party nor it prejudices the rights of either party. On those basis, it was held that the order cannot fall in the intermediate order category and it was, therefore, interlocutory order, pure and simple. The judgment in Virendrakumar's case therefore, seeks to lay down a broad proposition of law to the effect that every order passed under section 457 or 451 of the Code is to be considered as an interlocutory order within the meaning of said expression in Section 397(2) of the Code. With respect, I am unable to persuade myself to agree with the view taken by the learned single Judge in Virendra Kumar's case.

22. I am being of the considered opinion that there cannot be a general proposition of law that each and every such order under section 457 has to be an interlocutory order but on the contrary, it would depend on the facts of each case. Considering the decisions of the Apex Court in the case of Amar Nath, Madhu Limaye, V.C. Shukla, Rejendra Kumar Sitaram Pande, Mohanlal Maganlal Thakkar and Parmeshwari Devi as well as of the Single Judge of our High Court in Hasmukh J. Jhaveri, I am of the considered opinion that the order directing delivery of possession of the vehicle to a party cannot be considered as an interlocutory order within the meaning of the said term under section 397 of the Code. However, bearing in mind the judicial discipline, it would be appropriate to place the matter before the Honourable the Chief Justice for referring the same to larger Bench to have final opinion on the point in issue. The Registry, therefore, is directed to place the matter before the Honourable the Chief Justice for passing an appropriate order.

Order accordingly