Rajasthan High Court - Jaipur
Mahadev vs State Of Rajasthan And Anr. on 29 November, 1996
Equivalent citations: 1997CRILJ1614, 1997(1)WLC722, 1996(2)WLN686
ORDER M.A.A. Khan, J.
1. Heard the learned counsel for the parties.
2. In the present case Narain, informant lodged a FIR with Police Station Govindgarh alleging therein that the petitioner Mahadev alongwith his sons dishonestly took away a she buffalo from his possession. On such report a case of an offence under Section 379 I. P. C. was registered at the Police Station and after investigation Mahadev petitioner was chargesheeted. It is reported that by now a charge for the offence under Section 379 IPC has already been framed against the petitioner and he is facing trial for that.
3. In the course of investigation of the case the police seized the stolen property, that is the she buffalo from the possession of the petitioner. Both the parties moved their application under Section 447 Cr. P. C. before the learned Magistrate. After hearing the learned counsel for the parties the learned Magistrate vide his order dated 6-7-95, directed that the 'sapurdgi' of the she-buffalo, during the pendency of the proceedings be entrusted to the petitioner on his, executing a Supurdgi Nama in the amount of Rs. 10,000/-. Narain non-petitioner challenged this order of the Magistrate before the learned Sessions Judge Jaipur Distt. Jaipur who by his impugned order dated 5-6-96, reversed the order of the learned Magistrate and directed that the supurdgi of the she-buffalo be entrusted to Narain, the non-petitioner. Aggrieved against such order passed by the learned Sessions Judge on 5-6-96 Mahadev accused petitioner has approached this Court under Section 397 Cr. P. C.
4. Mr. Taquiddin , the learned counsel for the petitioner at the very outset urged that the order passed by the learned Magistrate under Section 457 Cr.P.C. being an intelocutory order in nature, was not revisable by the learned Sessions Judge in the exercise of his powers under Section 397 Cr. P. C. in view of the bar created by Sub-section (2) of the said provision. In support of such contention Mr. Taquiddin placed reliance on a decision of the Bombay High Court in the case of Liyakat Hussain v. Rajendra, (1992) 2 Crimes 549 (Sic). Mr. K. C. Sharma, the learned counsel for Narain complainant as also the learned Public Prosecutor supported the impugend order and further submitted that since the order passed under Section 457/451 Cr. P. C. was to remain in force during the pendency of the trial and thus finality was attached to it for that limited purpose and period, the same was not an interlocutory order so as to bar the jurisdiction of the revisional Court under Section 397 Cr. P. C. In support of such contention the learned counsel placed reliance upon the decision of this Court in the case of Raju v. State of Rajasthan, (1991) 1 Rajasthan LR 447 : (1992 Cri LJ 723). It was further submitted that since the petitioner did not raise the plea of lack of jurisdiction to the Sessions Judge before him, he should not be allowed to question the jurisdiction of the learned Sessions Judge at this stage.
5. I have gone through the impugned orders as passed by the inferior Courts and also the law as cited before me by the learned counsel for the parties. In the case of Liyakat Hussain (supra) the Bombay High Court has taken the view that an order passed under Section 451/457 Cr. P. C. releasing the property on the supurdgi nama of a person was interlocutory and not a final order and was, therefore, not amenable to revisional jurisdiction of the higher Courts. In support of such view the learned Judge has relied upon certain decisions passed by that Court and has also referred to certain decisions of the Apex Court.
6. In the case of Raju, (1992 Cri LJ 723) (supra), this Court with reference to certain earlier decisions and also the decisions of the Supreme Court in the cases of R.P. Kapoor v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239 : Amar Nath v. State of Harayana, AIR 1977 SC 2185: (1977 Cri LJ 1891), Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 : 1978 Cri LJ 165 and V.C. Shukla v. State through CBI, AIR 1980 SC 962 : (1980 Cri LJ 690), held that any order, which substantially affects rights of the parties, can not be called an interlocutory order at all. By passing an order under Section 451/457 Cr. P. C. the Magistrate, though temporarily, decides a valuable right of the claimants regarding the interim custody of the case property and, therefore, such an order cannot be called to be interlocutory in nature. In the case of Amar Nath, (1977 Cri LJ 1891) (supra), the Supreme Court had made the following pertinent observations : (Para 6) "It seems to us that the term "interlocutory order in Section 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 bouch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decide 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 or this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceedings, no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court."
7. The proposition laid down by the Supreme Court thus shows that the term interlocutory order used in the language of Section 397(2) of Cr. P. C. has been used in a restricted sense and not in any broad or artistic sense. Such an order merely denotes orders of a purely interim or temporary nature which do not decide or bouch the important rights or liabilities of the parties. Any order which substantially affects the rights of the parties and/ or decide such rights, may be temporarily, cannot be claimed, to be an interlocutory order so as to bare the revisionary powers of this Court or of the Court of Sessions because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 Cr. P. C. Orders like summoning witnesses, adjourning cases, granting bails, calling for records or reports and such other orders as are steps in aid of pending proceedings would be interlocutory orders in nature as they do not decide any substantial right of any of the parties to the proceedings and, therefore, a revision under Section 397(2) Cr. P. C. would not lie against such orders. But orders which decide substantially the rights of the par-ties, may be temporarily, shall have no character of interlocutory orders as an element of finality would stand attached to them. Such orders should be considered to be interim orders against which the remedy of the affected party by way of revision, either to this Court or to the Court of Sessions, must be available. Taking practical aspect of the case and considering the scope and object behind insertion of Section 397 Cr. P. C. it may be said that an order entrusting the supurdgi of the case property to either of the claimants, remains in force during the pendency of the proceedings before the Court. That means that it is an order substantially affecting the right to posses the case property during the pendency of the trial of the case. An element of finality, therefore, stands attached to such orders and therefore such orders are revisable under Section 397 Cr. P. C.
8. In view of the above I feel inclined to fall in line with the view expressed by this Court in the case of Raju (1992 Cri LJ 723) (supra) and also several other similar cases and which view stands supported by the decisions from the Apex Court in the cases of Amar Nath (1977 Cri LJ 1891) (supra) and Madhu Limaye (1978 Cri LJ 165) (supra).
9. The Bombay High Court seems to have considered the matter purely from technical point of view. With due respect to his Lordship of the Bombay High Court, the two Supreme Court's decisions, which were though referred to in the body of the report, were not discussed as they had been discussed by this Court in the case of Raju (supra). With great respect I differ from the view taken by the Bombay High Court on the point in the case of Liyakat Hussain (supra) and hold that the order passed by the learned Magistrate under Section 451/457 Cr. P. C. was a revisable order and the learned Sessions Judge had the jurisdiction to revise such order in exercise of his powers under Section 397 Cr. P. C.
10. Now the question whether the learned Sessions Judge was justified in interfering with the order made by the learned Magistrate of making over the interim possession of the she-buffalo to the petitioner is concerned I find that at that stage of the proceedings it was not much in dispute that the she-buffalo had been taken away by the petitioner from the possession of Narain non-petitions. A case under Section 379 IPC was not only registered against the petitioner but the investigation conducted in such case had resulted in submitting a report under Section 173 Cr. P. C. against him. Subsequently a charge fur the said offence was also framed against the petitioner. Looking to all these facts and circumstances of the case the learned Sessions Judge was justified in exercising the powers conferred upon him by Section 397 Cr. P. C. in the way he did.
11. Assuming for a while that the revision before the learned Sessions Judge was not maintainable under Section 397 Cr. P. C. then this Court in exercise of its powers under Section 482 Cr. P. C. may consider whether an order passed by inferior Court would amount to abuse of the process of the Court. Viewed from that angle too I do not think that if in the facts and circumstances of the case an interim supurdgi is allowed to remain with Narain non-petitioner any injustice is likely to be occasioned. In any view of the matter I do not feel inclined to interfere with the impugned order.
12. In the result the petition is dismissed.