Vinayak s/o. Narayan Saulakhe vs State of Maharashtra

Heard Shri. V.D. Muley, the learned counsel for the

petitioner and Shri V.P. Maldhure, the learned Additional Public

Prosecutor for the respondent / State.

Rule. Rule made returnable forthwith, with the consent of

parties.

Petitioner is challenging the order dated 7.11.2017

rendered by the learned Judicial Magistrate First Class (Court-2),

Saoner below Exhibit 29 in Regular Criminal Case 101 of 2017, thereby

rejecting the application seeking interim custody of tractor seized in

POR 10 of 2017. The order impugned rejects an application under

section 457 of the Code of Criminal Procedure.

Shri V.D. Muley, the learned counsel and Shri V.P.

Maldhure, the learned Additional Public Prosecutor have addressed this

Court on the merits of the application. Both the learned counsels are

placing reliance on certain decisions to buttress their submissions.

However, I am not inclined to look into the merits of the

controversy, since, in my opinion, the petitioner has not demonstrated

any compelling case for by-passing the revisional remedy under section

397 of the Code of Criminal Procedure and for entertaining the

grievance in writ jurisdiction.

The Division Bench of this Court in D''Damas Jewellery

India Pvt. Ltd. ...Vs.. State of Maharashtra & Ors, 2008 ALL MR

(Cri) 2127 has considered whether each and every order passed under

section 457 of the Code of Criminal Procedure, is to be considered as

interlocutory order. The Division Bench was answering a reference.

The Division Bench has held that section 457(1) of the

Code visualizes three types of orders in relation to the property seized

in the course of investigation. The relevant observations of the Division

Bench read thus:

"5. Section 457(1) visualizes three types of orders in relation to the property seized by the police in the course of investigation. The first type of order relates to disposal of the property. Obviously, the occasion for disposal would arise in cases where the property is either of perishable nature or is of such a nature which requires disposal thereof for any justifiable reason. The second type of order relates to the delivery of the possession of the property for proper custody and production thereof as and when required. The third type of order relates to the custody of the property in case where the person entitled to possess is not ascertainable".

The conclusions recorded by the Division Bench read thus:

"8. As seen above, there are three eventualities visualizes for exercise of power under Section 457(1), and one eventuality clearly refers to disposal of property, while the other to delivery of the property and the third one for custody. Once the property is disposed of during the

pendency of the trial or before the conclusion of the trial, in our considered opinion, any order resulting in disposal of property can hardly be said to be an interlocutory order. Such an order would automatically in result in final adjudication in relation to the property ordered to be disposed of. The disposal may also include destruction of the property. In case the property is destroyed, nothing further remains to be considered in relation to the property. Obviously, therefore, any such order can, by no stretch of imagination, be said to be an interlocutory order. Such an order will put an end to all the rights or interest in the property.

As regards the delivery of property to any person entitled for possession thereof, it will stand on the same footing as that of disposal of the property. In case of such delivery of property, it would be only after ascertaining the right of the person claiming to be entitled to have possession of such property. Obviously, therefore, the Court will have to decide the issue relating to the right to possess and accordingly deliver the property to the person who is entitled to possess the same. Being so, such an order deciding the issue regarding right to possess the property cannot be said to b an interlocutory order. For that purpose, such an order would be amenable to revisional jurisdiction under Section 397 of the Code.

As regards the third eventuality under Section 457 of the Code, the order in such an eventuality would be only for custody of the property during the trial, subject to condition that the same should be produced at any time required by the Court. Such an order would certainly fall within the category of interlocutory order as one cannot attach any finality to such an order since it does not decide any right to the property nor it implies any adjudication of any issue as such".

Concededly, the order impugned does not fall in the third

category since it is not even the case of the prosecution that the person

entitled to possess to tractor is not ascertainable.

The order impugned is revisionable. I do not see any

compelling or extraordinary case for entertaining the petition and

permitting the petitioner to by-pass the revisional remedy under section

397 of the Code of Criminal Procedure.

The petition is dismissed.

The petitioner is free to challenge the order impugned

before the revisional Court - Sessions Court. However, considering the

fact that the petitioner is an agriculturist and would suffer serious

prejudice if ultimately the tractor is found to be detained without

justification, the revisional Court is requested to decide the revision, if

preferred, within 15 days of the date of the institution.

With these observations, the Rule is discharged.