K. Basha vs State

Honourable Mr. Justice P.R. Shiva Kumar

Heard the submissions made by Mr. S. Sureshkumar, learned counsel for the petitioner in the Criminal Revision Case. The present Criminal Revision Case has been filed challenging the order of the learned Judicial Magistrate, No. VI, Trichy, dated 02.12.2011 returning a petition filed u/s 451 Cr.P.C in Crime No. 829 of 2011 on the file of the Inspector of Civil Supplies C.I.D., Trichy, Trichy District, praying for the grant of interim custody of a vehicle namely, a TVS XL Super two wheeler, bearing Registration No. TN-48-B-6694 contending that the said vehicle had been seized by the police in the above said crime number. The learned Judicial Magistrate seems to have returned the unnumbered criminal miscellaneous petition stating the non-production of the properties seized by the police for remand as the reason. The order reads as follows:

RP not received by this court. Hence return.

The said order is sought to be challenged by invoking the revisional powers of this court u/s 397 r/w. 401 Cr.P.C.

When a question was raised by this court as to the maintainability of the revision, learned counsel for the petitioner in the Criminal Revision Case cited an order of another Hon'ble Judge of this court in Gajendran vs. State through the Inspector of Police, Civil Supplies C.I.D. Madurai, reported in 2008 (6) CTC 846. It is true that when a similar order had been passed by the learned Judicial Magistrate of Vadipatti, Madurai District, this court entertained a revision and directed the Judicial Magistrate concerned to take the petition seeking interim custody of the vehicle on file and dispose of the same as expeditiously as possible. The said order came to be passed relying on the guidelines issued by the Hon'ble Supreme Court in Sunderbhai Ambalal Desai vs. State of Gujarat reported in 2003 SCC (Cri) 1440. The learned Judge of this court also observed that despite such elaborate and clear directions having been issued, Magistrates did have the tendency to return the petition filed u/s 451 Cr.P.C on the untenable ground that the property had not been produced in the court for remand. The Hon'ble Judge has also deprecated the practice adopted by such Magistrates violating the mandatory directions issued by the Hon'ble Apex Court.

But no-where in the said case, the nature of the order under challenge (whether interlocutory or not) was raised and this court also did not consider the question of maintainability of a revision based on the nature of the order under challenge viz., whether interlocutory or otherwise.

Therefore, the said judgment cannot be cited as a binding precedent as to the question whether an order returning the petition is an interlocutory order or not an interlocutory order and hence, whether a revision challenging such an order is competent and not barred by sub-section 2 of section 397 Cr.P.C. Since the said question was not touched by the Hon'ble Judge in the order cited by the learned counsel for the petitioner, it is open for consideration in the present Criminal Revision Case. Hence, this court has to consider the nature of the order under challenge and the question of the attraction of the bar provided under sub section 2 of section 397 Cr.P.C for entertaining a revision.

First of all, the petition seeking interim custody of the vehicle filed in this case before the learned Judicial Magistrate No. VI, Trichy seems to have been filed noting a wrong and in-appropriate provision of law. The petition was filed u/s 451 Cr.P.C. Section 451 Cr.P.C. deals with the order for custody and disposal of property pending trial when such property is produced before any Criminal Court during any inquiry or trial. For better appreciation, section 451 is reproduced hereunder:

Order for custody and disposal of property pending trial in certain cases.-When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for 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.

Explanation.-For the purposes of this section, "property" includes-

(a) property of any kind or document which is produced before the Court or which is in its custody,

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commissionofanyoffence.

It is crystal clear that for seeking an order u/s 451 Cr.P.C. the property should have been produced before the criminal court during any inquiry or trial. Then a question may arise as to what shall be the remedy for a person seeking custody of the property, when the property seized by the police during investigation is retained by the police and the police do not produce the same before the Magistrate for remand. The answer lies in section 457 Cr.P.C. Section 457 alone is the appropriate provision under which an order can be sought for the interim custody of the vehicle when the police seizes a property and before the production of the same in the court. The seizure of the property should be reported to a Magistrate for exercise of the power u/s 457 Cr.P.C. Even if, the seizure is not reported earlier and a petition u/s 457 Cr.P.C comes to be filed, it is the duty of the Magistrate to give notice to the police and find out whether any such seizure was made and then pass appropriate order. But that does not mean that the Magistrate should be directed to pass an order for interim custody of the property u/s 451 Cr.P.C, when the property was not produced before such Magistrate.

of course, it is true that the learned Judicial Magistrate has not explicitly cited the quoting of a wrong provision of law as the reason for returning the petition. But the reason assigned in the order of return will show that the return was made taking into consideration the scope of section 451 Cr.P.C as the said section alone was quoted as the provision under which the petition was filed. When the petition was returned with such an order, the petitioner could have re-presented the same quoting appropriate provision namely, section 457 Cr.P.C and thereupon drawn the attention of the Magistrate to the powers of the Magistrate conferred u/s 457 Cr.P.C in respect of properties seized by the police and not produced before the court. Even in case of return of a petition citing an appropriate provision, the order returning the same cannot be taken as a final order in that petition, because it shall be still open to the petitioner to re-present the same stating that the reason assigned for the return is not tenable.

If at all the petition for interim custody is returned in utter disregard of the directions of the Hon'ble Supreme Court issued in Sunderbai Ambalal

vs. State of Gujarat's case, which was followed in a catena of cases by various High courts, the petitioner could have re-presented the petition drawing the attention of the Judicial Magistrate to the said judgment. Instead of doing it, the petitioner has chosen to file a revision before the High Court invoking sections 397 and 401 Cr.P.C, despite the existence of a provision in sub-section 2 of section 397 Cr.P.C. It shall also be appropriate to observe here that the tendency shown by some of the Judicial Magistrates in simply returning the petitions filed either u/s 451 or u/s

457 Cr.P.C seeking interim custody of the properties seized by the police citing the non-production of the property before the Magistrate as the reason will amount to dereliction of the duty on the part of the Judicial Magistrate, provided the petition is filed under appropriate provision without misleading the Magistrate as to the provision applicable, since section 451 and 457 Cr.P.C apply under different circumstances. A similar tendency is also seen on the part of the litigants to approach the revisional court against such return unmindful of the fact that such an order is only an interlocutory order and not a final order finally disposing of the petition and the petition could be re-presented stating how the reasons assigned by the court for the return of the petition are not correct.

When there is a specific provision barring entertainment of the revisional powers in respect of interlocutory orders, the said provision should be respected and the same should not be flouted and made a dead letter by entertaining revision on the ground that the interest of justice would require such entertainment to avoid miscarriage of justice or to render complete justice. The said grounds pertain the domain of the inherent powers of the High Courts u/s 482 Cr.P.C. In such cases, it may be appropriate to file a petition u/s 482 Cr.P.C. but that does not mean that such an order can be challenged by way of a revision u/s 397 r/w 401 Cr.P.C. If such a revision is entertained as a revision case, the same will amount to recognizing a power on the Sessions Judge also u/s 399 to entertain a revision against such an order, which no-doubt is an interlocutory order.

For all the reasons stated above, this court comes to the conclusion that the present Criminal Revision Case is not maintainable and the same deserves to be dismissed. Accordingly, the Criminal Revision Case is dismissed as not maintainable, as it stands barred by section 397(2) Cr.P.C.

The office is directed to return the unnumbered criminal miscellaneous petition filed by the petitioner in the trial court to the petitioner retaining the copy of the same available in the typed set of papers to enable the petitioner to re-present the same before the learned Judicial Magistrate concerned.