Kerala High Court
Mohammed Ali M.P vs The Union Territory Of Lakshadweep on 11 November, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942
Crl.MC.No.4431 OF 2020(D)
AGAINST THE ORDER/JUDGMENT IN CRRP 4/2020 OF DISTRICT COURT,
KAVARATHY
AGAINST THE ORDER/JUDGMENT IN CRMP 22/2020 OF JUDICIAL MAGISTRTE
OF 1ST CLASS,ANDROTH
PETITIONER/S:
MOHAMMED ALI M.P.
AGED 48 YEARS
NELIYAMPURA HOUSE,
KAVARATTI ISLAND,
UNION TERRITORY OF LAKSHADWEEP.
BY ADV. SRI.BABU S. NAIR
RESPONDENT/S:
1 THE UNION TERRITORY OF LAKSHADWEEP
REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI, PIN-682031
2 THE RANGE FOREST OFFICER (HQ)
DEPARTMENT OF ENVIRONMENT AND FOREST, KAVARATTI,
UNION TERRITORY OF LAKSHADWEEP, PIN-682555.
R1-2 BY SRI.MANU.S, SCGC, ADMINISTRATION OF THE UNION
TERRITORY OF LAKSHADWEEP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-11-
2020, THE COURT ON 11-11-2020 PASSED THE FOLLOWING:
Crl.M.C. No. 4431 of 2020
2
P.V.KUNHIKRISHNAN, J.
=================== Crl.M.C. No. 4431 of 2020 =================== Dated this the 11th day of November, 2020 OR D E R This Crl.M.C is filed challenging the order dated 30.9.2020 in Crl.R.P.No.4/2020 on the file of the Sessions Judge, Kavaratti, Lakshadweep. The impugned order is an order passed by the learned Sessions Judge invoking the powers under Section 397 Cr.P.C.
2. The brief facts is like this: The Judicial First Class Magistrate Court, Androth allowed Crl.M.P. No. 22/2020 by granting interim custody of a boat involved in WLOR 1/2020 of Forest Range Officer (HQ), Department of Environment and Forest, Kavaratti. The prosecution case is that on 11.01.2020 at about 12.30 p.m., four persons were found suspiciously in a fishing boat namely KHYBER- 2 No.IND.LD.KV.MO.149 on the western side of Suheli Cheriyakara island and on inspecting the boat the team of Crl.M.C. No. 4431 of 2020 3 officers of police department, Department of Fisheries and Department of Environment and Forest found 8 bags filled with 99 numbers of big white dead sea cucumbers stuffed with salt after removing the intestine, 74 numbers of black dead sea cucumbers artificially preserved with salt and 46 numbers of live sea cucumbers in the fish collected boat. The boat was seized and all the four accused were arrested after complying legal formalities. The owner of the boat was implicated subsequently as accused No.5. Thereafter the owner of the boat preferred Crl.M.P. No.22/2020 praying for interim custody of the boat involved in the incident. The learned Magistrate allowed that petition. Anneuxre-B is the order passed by the learned magistrate. A perusal of Anneuxre-B shows that it is an order passed under Section 451 Cr.P.C.
3. Challenging Annexure-B order passed by the learned Magistrate under Section 451 Cr.P.C., the respondents in this Crl.M.C filed a Crl.R.P. before the Sessions Court under Section 397 Cr.P.C. The learned Sessions Judge entertained the same and modified the Crl.M.C. No. 4431 of 2020 4 order passed by the learned Magistrate as per the impugned order in this Crl.M.C. Aggrieved by the same, this Crl.M.C is filed.
4. Heard the counsel for the petitioner and the Standing counsel who is appearing for the respondents.
5. The counsel for the petitioner submitted that Annexure-D order is prima facie not maintainable. The learned counsel submitted that the Sessions court has no jurisdiction to entertain a revision against an order passed under Section 451 Cr.P.C. The counsel submitted that there is a clear bar under Section 397(2) Cr.P.C which states that the power of revision conferred by sub-section (1) of Section 397 Cr.P.C. shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry or trial or other proceedings. Therefore, the learned counsel for the petitioner submitted that the order passed by the learned Sessions Judge is without jurisdiction. In such circumstances, according to the counsel, Annexure- D is an illegal order passed without jurisdiction. The counsel submitted that for that simple reason Annexure-D order Crl.M.C. No. 4431 of 2020 5 may be set aside.
6. The Standing counsel who appeared for the respondents submitted that actually, an application was filed under Section 457 Cr.P.C by the petitioner herein before the learned Magistrate. The learned Magistrate by mistake passed an order under Section 451 Cr.P.C. If an order is passed under Section 457 Cr.P.C, the learned Sessions Judge is perfectly justified in entertaining the revision in the light of several decisions of this Court and apex court. The learned Standing counsel submitted that if this Court is interfering with Annexure-D order, the respondents in this case will be without any remedy and Anneuxre-B order will sustain. The learned Standing counsel submitted that if this Court feel that the Sessions Court erred in entertaining the revision, the matter may be sent back to the revisional court for deciding the maintainability of the revision before the sessions court.
7. The point to be decided in this case is whether Annexure D order is sustainable or not.
8. The powers of the sessions court to entertain a Crl.M.C. No. 4431 of 2020 6 revision is clearly mentioned in Section 397 Cr.P.C. It will be better to extract Section 397 Cr.P.C.
"397. Calling for records to exercise powers of revision.
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.
Crl.M.C. No. 4431 of 20207 (2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them".
9. Section 397 (2) Cr.P.C clearly says that the revisional power cannot be exercised in relation to any interlocutory order passed in an appeal, enquiry, trial or other proceedings. Therefore, it is clear that a criminal revision under Section 397 is not maintainable against an interlocutory order passed by the lower court.
10. The next point to be decided is whether Anneuxre-D order is sustainable in the light of the above legal position. The counsel for the respondents submits that the petition filed by the petitioner before the lower court is under Section 457 Cr.P.C. But this Court can only consider the order passed by the learned Magistrate. The learned Magistrate exercised the powers under Section Crl.M.C. No. 4431 of 2020 8 451 Cr.P.C.
11. The learned Standing counsel filed a statement also in this criminal miscellaneous case raising various contentions. The learned standing counsel argued based on the judgment of this Court in several cases, in which it is stated that, the order passed by the learned Magistrate can be treated as an order under Section 457 Cr.P.C. only and therefore, the revision is maintainable. The learned Standing Counsel relied heavily on the decision of this Court in Joshy Vs. state of Kerala (1986 CriLJ 263). The relevant portion of the above judgment is extracted hereunder.
"The general question whether an order passed under Section 451 of the Code will remain only as an interlocutory order under all contingencies or whether under certain circumstances it could be treated as an intermediate or even a final order revisable under the revisional powers in spite of the prohibition under Section 397(2) of the Code are matters which are only of academic importance so far as the case in hand is concerned. There are certain decided cases which Crl.M.C. No. 4431 of 2020 9 show that under certain circumstances such orders could be treated as intermediate orders or final orders as between the parties thereto. But such circumstances do not arise for consideration in this case.
In Pathu v. State of Kerala 1975 Ker LT 696, Janaki Amma J. had occasion to observe that under the circumstances of that case an order under Section 451 was a final order between the parties as it finally disposed of the rights of one of the parties who was a stranger to the litigation. There are other decisions also which took the same view.
Decided cases have laid down that for the purpose of Section 397(1), revisable orders could be those which decide the rights and liabilities of parties concerning a particular aspect as distinct from orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Ordinarily and generally 'interlocutory' order will have to be understood to mean as a converse to the term 'final order'. But whatever is not final order cannot be taken as interlocutory order. If such an interpretation is placed, the revisional powers of the Crl.M.C. No. 4431 of 2020 10 Sessions Court or the High Court will be rendered nugatory because only such orders on final determination of the action which are not appealable will become revisable. Evidently that is not the intention of the legislature when it retained the revisional powers of the High Court under the new Code. The retention of the revisional power and the bar in the exercise of such power in relation to interlocutory orders will have to be harmoniously interpreted."
12. The learned Standing Counsel submitted that, this Court may not interfere with the order passed by the revisional court invoking powers under Section 482 Cr.P.C. The learned counsel also submitted that, the boat is worth about 40 to 50 lakhs. The revisional court only modified the bond amount. Therefore, the learned Standing Counsel submitted that, there is nothing to interfere with the order passed by the revisional court.
13. Annexure-B is the order passed by the learned Magistrate. In the first sentence of Annexure-B order, it is Crl.M.C. No. 4431 of 2020 11 stated that, this is an application under Section 451 Cr.P.C. It is true that, the learned Standing Counsel for the respondent submitted that, the application submitted by the petitioner herein before the learned magistrate is an application under Section 457 Cr.P.C. But, even though, that application was filed under Section 457 Cr.P.C., from Annexure-B order, it is clear that, the learned magistrate invoked powers under Section 451 Cr.P.C. and released the boat. It is true that, there are several contentions raised by the learned Standing Counsel challenging the validity of Annexure-B order. According to the learned Standing Counsel, the learned Magistrate erred in passing such an order and there is no jurisdiction to the learned magistrate to pass such an order. I cannot decide all these things in this petition. This is not a petition, challenging Annexure-B order. This is a petition filed under Section 482 Cr.P.C. challenging Annexure-D order passed by the revisional court. The validity of Annexure-B order can not be considered by this Court, while considering this petition filed by the petitioner under Section 482 Cr.P.C., in which Crl.M.C. No. 4431 of 2020 12 the Annexure-B is the impugned order. Therefore, I cannot agree with the learned Standing Counsel on that ground.
14. The short point raised by the petitioner is that, the Sessions court entertained a revision under Section 397 Cr.P.C and interfered with an order passed under Section 451 Cr.P.C. There may not be any dispute that an order passed under Section 451 Cr.P.C. is an interlocutory order. There is a specific Bar in Section 397(2) Cr.P.C., which says that the powers of revision conferred by sub- section (1) of 397 shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings. I can understand that, if the revisional court after prima facie concluding that, the order passed by the learned magistrate is not under Section 451 Cr.P.C., and thereafter entertained the revision. That is not the case here. A bare reading of the order passed by the learned magistrate, it is clear that, the learned magistrate exercised the jurisdiction under Section 451 Cr.P.C. That order is the impugned order before the revisional court. The revisional court entertained the revision and varied Crl.M.C. No. 4431 of 2020 13 the conditions in the order passed by the learned Magistrate under Section 451 Cr.P.C. I am not saying about the validity of the order passed by the learned magistrate under Section 451 Cr.P.C. I am only on the point whether the sessions court can entertain an application under section 397 Cr.P.C. when the impugned order is an interlocutory order. According to me, a bare reading of Annexure-B order, it is clear that, the order passed by the learned Magistrate is under Section 451 Cr.P.C. There may not be any doubt, as I stated earlier that, if an order is passed under Section 451 Cr.P.C., it is an interlocutory order and there is a specific Bar in entertaining a revision against the interlocutory order under Section 397 (2) Cr.P.C. Therefore the revision filed before the sessions court, Kavaratti against the order passed under Section 451 Cr.P.C. is not maintainable. If the revision itself is not maintainable the revisional court can not vary the conditions imposed by the learned magistrate court. So according to me, Annexure-D order will not stand. I left open all the contentions of the Crl.M.C. No. 4431 of 2020 14 respondents against the order passed by the learned magistrate under Section 451 Cr.P.C.. I need not consider the same in this criminal miscellaneous case because the petitioner filed this petition under Section 482 Cr.P.C. challenging Annexure-D order passed by the revisional court. Therefore, I set aside Annexure-D order dated 30.09.2020 in Crl. R.P. No. 4/2020 declaring that the session court, Kavaratti has no jurisdiction to entertain a revision against an order passed under Section 451 Cr.P.C..
15. The petitioner is free to approach the learned magistrate court to implement the Annexure-B order immediately.
In the result this Crl. M.C. is allowed. The order dated 30.09.2020 in Crl. R.P. No. 4/2020 on the file of Sessions Judge Kavaratti is set aside.
(Sd/-) P.V.KUNHIKRISHNAN, JUDGE LU Crl.M.C. No. 4431 of 2020 15 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE FISHING BOAT OF THE PETITIONER DATED,03.09.2015.
ANNEXURE B TRUE COPY OF THE ORDER IN CR.M.P NO.
22/2020 DATED, 20.03.2020 OF THE J.F.C.M., ANDROTT.
ANNEXURE C TRUE COPY OF THE ORDER DATED,
27.05.2020 IN CR. M.P. NO.22/2020 OF
THE J.F.C.M, ANDROTT.
ANNEXURE D TRUE COPY OF THE ORDER DATED,
30.09.2020 IN CRL. R.P. NO. 4/2020 OF
THE COURT OF SESSION, KAVARATTI.
// True Copy // PA To Judge