Delhi District Court
Mohd. Aslam vs The State (Nct Of Delhi) on 23 April, 2018
IN THE COURT OF Dr. KAMINI LAU: SPECIAL JUDGE
(PC ACT): CBI01: CENTRAL DISTRICT:
TIS HAZARI COURTS: DELHI
Crl. Revision No. 37/2018
Mohd. Aslam,
S/o Shri Yaseen,
R/o 180, Chalyar,
P.O. Bashat, P.S. Chenani,
Tehsil Cherani, Distt. Udhampur,
Jammu Kashmir.
....Revisionist
Versus
The State (NCT of Delhi)
Through its Secretary/Chairperson,
D. S. P. C. A, Boulevard Road,
OPP. Tis Hazari Courts,
Delhi110054
.....Respondent
Date of Institution: 03.04.2018
Judgment Reserved on: 20.04.2018
Judgment Pronounced on: 23.04.2018
JUDGMENT:
(1) Twenty One revision petitions have been filed against the orders of the Ld. MM04, Central District, Delhi dismissing the applications of the revisionists for release of animals / vehicles on Superdari, which revisions are under consideration before this Court.
Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 1 of 38 (2) This Criminal Revision Petition has been filed against the impugned order dated 28.03.2018 passed by Ld. Trial Court whereby declining the request of the Revisionist / owner to have the interim custody of Animals (i.e. case property).
Brief Facts & Arguments:
(3) It is pleaded that the revisionist, while transporting his 169 animals i.e. 148 sheep and 21 goats to Jammu & Kashmir for selling the same in the open market in a vehicle bearing no. JK05E4485, was apprehended by the officials of the DSPCA and challaned vide Challan no. 335 dated 19.03.2018 U/s 65 (a) (b), 66, 67 (a) (b), 68, 69, 70, 71 of TPT of Animals Rules, 1978 r/w Sec. 11 (a) (d) PCA Act. It is further pleaded that the revisionist did not plead his guilt, claimed for the trial for which the date was fixed 30.06.2018 and thereafter, he moved an application U/s 451 Cr.P.C before the Ld. Trial Court seeking the interim custody of the animals till the pendency of the proceedings, which was declined vide order dated 28.03.2018. It is further pleaded that the Ld. Trial Court declined the aforesaid application in view of the observation made by this Court in Bajrang's Case bearing Criminal Revision No. 03/2018 decided on dated 31.01.2018. It is pleaded that Bajrang's case is not identical because in that case, the revisionist had pleaded his guilt before the Ld. Trial Court and thereafter sought the custody of his animals. It is further pleaded that the revisionist had undertaken before the Ld. Trial Court to not expose the said animals to further cruelty, in case Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 2 of 38 they are taken by the revisionist after their release with an additional undertaking to produce the said animals in the court during trial, if so required or directed by the Ld. Trial Court. The revisionist being aggrieved with the order passed by the Ld. Trial Court prefers the instant revision petition on the following grounds: That the impugned order dated 28.03.2018 is bad in law and deserves to be setaside by this Court.
That the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017 are ultravirus in nature as the rules are to be complied/followed by the citizens of India but they have prescribed the punishment to be imposed by the Courts of law.
That as the Meat Industry in India is one of the biggest source of economy and first in rank of importexport trade, the rules prescribed in 2017 are defeating the purpose of the Indian Economy and trade of import export as well.
That the said Rules are in continuation of SubSection (1) of Section 38 of Prevention of Cruelty to Animals Act, 1960 (59 of 1960) so these rules are to be read in continuation thereof and Subsection (3) of Section 38 prescribes the punishment for the violation of these rules. That the Ld. Trial Court has erred in overlooking the legal system of hierarchy of laws and moreover, Kelsen's Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 3 of 38 (The pure Theory of law) discussed by this Court. That the Ld. Trial Court has erred in not appreciating that since there is inconsistency between the 'Rules' and 'Act', it is debatable issue rather a question of law so it must have been referred to the Hon'ble High Court of Delhi as reference for clarification before depriving the revisionist for the interim custody of the animals. That the Ld. Trial Court has erred to dismiss the application of revisionist without confirming whether the Central Motor Vehicle (Eleventh Amendment) Rules, 2016 have been notified in Delhi/NCR or nor.
That the Ld. Trial Court has erred in not verifying the fact that Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animal) Rules, 2017 have been implemented in Delhi before dismissing the application of the revisionist, despite the reply dated 24.01.2018 to one application under RTI by "Ministry of Environment, Forest and Climate Change" that 'the said rules has not yet been implemented'.
That the Ld. Trial Court has erred in not following the law laid down by the Apex Court in "Ispat Industries Ltd." observing therein that if there is conflict between the provisions of 'Rules' and provisions of 'Act', the Act being the statutory law shall prevail.
Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 4 of 38 That the Ld. Trial Court has erred in not appreciating that the animals are being kept by the staff of the DSPCA in a very casual manner without their proper feeding, care and necessities for their life and health. Meaning thereby that these animals are being exposed to further cruelty.
That the Ld. Trial Court has erred in not appreciating that the revisionist being from poor background shall not be in a position to pay the feeding charges incurred by the DSPCA because of the reason that the charges of the maintenance of the animals till their release to the revisionist / owner shall increase above to the actual cost of the animals.
That the Ld. Trial Court has erred in not appreciating that the 'Animals' for the purpose of Prevention of Cruelty to Animals (Care and Maintenance of case Property Animals) Rules, 2017 has been defined in the Rules under Section 2 (C) "Cattle" means a bovine animal including bulls, cows, buffaloes, steers, heifers and calves and includes camels, but not the sheep and goats.
That the Ld. Trial Court has erred in not appreciating that the sheep and goats being exclusive of the said Rules, 2017 are to be governed/dealt by ChapterVI of 'The Transport of Animals Rules, 1978' wherein Rule Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 5 of 38 64 specifies that Rules 65 to 75 shall apply to the transport of sheep and goats by rail or road involving journeys of more than 6 hours.
That the Ld. Trial Court has erred in not appreciating that the animals being the case property(s) are to be dealt according to the Law laid down by the Hon'ble High Court of Delhi in a Crl. M. C. No. 4485/2013 dated 10.09.2014 titled as "Manjeet Singh Vs. State". That the Ld. Trial Court has erred in not appreciating that the owners of the animals are being put on the verge of starvation by causing monitory loss to them by keeping their animals with the DSPCA.
(4) In so far as the animals are concerned, it is submitted that the applicant / Revisionist has sufficient place where he can house the animals till the disposal of the case before the Ld. Trial Court details of which are as under:
11134, 11135, 11136 & 11137, Eidgah Road, Sadar Bazar, Delhi-55.
(5) A detailed reply to the revision petition has been filed on behalf of the Respondent / State stating that the present Revision Petition is not maintainable because the order dated 28.03.2018 is an interlocutory order and Clause 2 of Section 397 of Cr.P.C.
specifically bars revision petition against the interlocutory order.
Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 6 of 38 It is submitted that the order under challenge is an interlocutory order because case is still pending in the concerned Ld. MM Sh. Chander Mohan and the order dated 28.03.2018 has been passed during the pendency of the above said case and this order has not finally decided the rights of the parties and if decision of the final case comes in the favour of the Revisionist then ultimately the animals will be released in his favour. Ld. Addl. PP has argued that the law laid down by Hon'ble Delhi High Court in the case of "Anisa Begum Vs. Masoom Ali and Ors.", reported as 1986 CriLJ503 is very clear on this point that if a supardari application is dismissed then that order cannot be challenged by way of revision petition because that order amounts to an interlocutory order. It is further submitted that in Rule 5 (c) of the Rules, the word "Shall" has been used which means that the Ld. Trial Court has no option to release the vehicle on superdari but in under an obligation to direct that the vehicle to be held as security if such vehicle is involved in the offence under Prevention of Cruelty of Animal etc. Ld. Addl. PP has also placed reliance on the judgment of Hon'ble Supreme Court in the case of "Sabu Steephen Versus Union of India & Anr." SC Civil Original Jurisdiction, Writ Petition (C) No. 419/2017 wherein the Hon'ble Supreme Court vacated the stay on Prevention of Cruelty of Animals (Care and Maintenance of case property Animals) Rules, 2017. In other words, the above said Prevention of Cruelty of Animals (Care and Maintenance of case property Animals) Rules, 2017 are in vogue. It is also argued that there is no conflict Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 7 of 38 between the rules and provisions of the Act because Rule 5 (c) is clear in terms and is not in conflict with any of the provisions of the Act.
(6) It is further argued that this issue of inconsistency between Section 29 and Rule 3, has also been considered by the Hon'ble Supreme Court in the case of All India Jamaitul Qureshi Action Committee, through its President Mohd. Abdul Fahin Advocate Versus Union of India in Writ Petition (C) No. 000422/2017 wherein the Hon'ble Supreme Court on the basis of statement given by Sh. P.S. Narsimha, Ld. Additional Solicitor General had initially directed as and when the amended Rules are notified, sufficient time be granted to all the stake holders before they are implemented, so that they have a sufficient opportunity, if aggrieved, to assail them in consonance with law and in the meanwhile the Ministry of Environment and forests being seized of the matter, had stayed the operation of the said rules. However, later the said order was modified in the case of Sabu Steephen Versus Union of India & Anr. in Writ Petition (C) No. 419/2017 and it was clarified that the directions dated 11.07.2017 should be limited to Rules 22 (b) (iii), 22
(d) (ii) & (v) and 22 (e) (i) & (iii) of the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules 2017 and hence, the provisions of Section 29 and Rule 3 & 8 are no longer operative in view of the stay by the Hon'ble Supreme Court is without any basis, the said provisions are operative and the stay being limited only to the provisions of Rules 22 (b) (iii), 22 (d) (ii) & (v) and 22 (e) (i) & Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 8 of 38
(iii) of the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules 2017. The Ld. Addl. Public Prosecutor has further pointed out that the animals which have been duly seized are in the safe custody of SPCA, present status of which animals alongwith details of feeding charges due upon all the Revisionists jointly / alleged owners of the animals, are as under:
Sr. Owner's Vehicle No. Name of No. of Receiving No. of Present Feeding No. Name Species Animals Date by animals Status of Charges till SPCA who have Animals 18.04.2018 died upto 18.04.2018
1. Jameel S/o HR55R Sheep & 39 28.02.2018 19 (13 20 Sheep 20 X 50 X 50 = Suleman 1351 goats sheep + 6 Rs.50,000/ goats)
2. Pram S/o DL1LY Buffaloes 05 05.03.2018 Nil 05 (2 05 X 150 X 45 Om Prakash 8311 & Calves Buffaloes = Rs.33,750/ + 3 Calves)
3. Vijender S/o HR61B Buffaloes 05 05.03.2018 2 Buffaloes 3 03 X 150 X 45 Rishal 9387 Buffaloes = Rs.20,250/ Singh
4. Jamshed S/o RJ14G Buffaloes 37 05.03.2018 13 24 24 X 150 X 45 Jaleel 4553 Buffaloes Buffaloes = Rs.1,62,000/
5. Surender RJ18GA Sheep & 37 05.03.2018 17 (9 sheep 20 sheep 20 X 50 X 45 S/o Chhotu 8469 goats + 8 goats) & goats = Rs.45,000/ Ram
6. Raj Kumar UP81BT Buffaloes, 07 09.03.2018 02 (1 B. 05 (3 05 X 150 X 41 S/o Ram 8117 B. Calves Calf + 1 Buffaloes = Rs.30,750/ Swaroop & Cow Cow) + 1 B. Calf + 1 Cow)
7. Mohd. Ajaj DLILT Buffaloes 05 12.03.2018 Nil 05 (2 05 X 150 X 38 S/o Yasin 1977 & Calves Buffaloes = Rs.28,500/ + 3 B. Calves)
8. Fakruddin RJ14GT Buffaloes 35 12.03.2018 6 Buffaloes 29 29 X 150 X 38 S/o Shahid 1148 Buffaloes = Rs.1,65,300/
9. Mohd. JK05E Sheep & 169 17.03.2018 50 (29 119 Sheep 119 X 50 X 33 Aslam S/o 4485 goats sheep + 21 = Rs.1,96,300/ Yassin goats)
10. Mohd. JK05E Sheep & 164 17.03.2018 48 (47 116 Sheep 116 X 50 X 33 Sadik S/o 5457 goats sheep + 1 = Rs.1,91,400/ Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 9 of 38 Sr. Owner's Vehicle No. Name of No. of Receiving No. of Present Feeding No. Name Species Animals Date by animals Status of Charges till SPCA who have Animals 18.04.2018 died upto 18.04.2018 Mohd. goat) Mehboob
11. Farukh HR74A Sheep & 163 17.03.2018 47 (36 116 Sheep 116 X 50 X 33 Khan S/o 1211 goats sheep + 11 = Rs.1,91,400/ Shahid goats) Khan Total = Rs.11,14,650/ (7) It is argued that the animals were found in painful condition because of the cramped nature of the vehicles / trucks which were not meant for carrying animals and were not having any separate / parallel partition / modifications as required under Rule 125E of Central Motor Vehicle Rules, 2015. It is submitted that not only the provisions of Prevention of Cruelty to Animals Act have been attracted but also the relevant provisions of Transport of Animals Rules, 1978 / 2011 (Chapter IV Rules 46 to 56 dealing with cattle and Chapter VI Rules 64 to 75 dealing with Sheep & Goats); Section 19(c), 20 & 117 of Motor Vehicles Act read with relevant Rules on Transport of Animals Rules, 1978 which have been violated. Ld. Addl. Public Prosecutor has placed his reliance upon the case of Prema Veeraraghavan Vs. State by the Inspector of Police, K10, Koyambedue P.S., Chennai and another, Crl.R.C. No.1534 of 2001 reported in 2002 (1) CTC627 and Naseerulah Vs. State and G. Subramaniya Karthick reported in 2013 (1) LW (Crl)
614. Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 10 of 38 (8) On merits, it is submitted by the Ld. Addl. Public Prosecutor that even otherwise, assuming that the Revision Petitions are maintainable, it is not open for this court to substitute its own opinion with that of the Ld. Trial court once it finds that the order on the face of it does not suffer from any illegality, a patent defect or an error of jurisdiction or law. It is submitted that the allegations made by the Revisionist that the SPCA i.e. Society for Prevention of Cruelty to Animals is not adequately equipped to house the animals are totally non specific and vague. It is pointed out that SPCA is an authority which is a creation of the Statute and the only Infirmary of Delhi Government declared vide Gazette notification dated 23.02.2010. It is also pointed out by the Ld. Addl. PP that as per the status report furnished by the SPCA there exists adequate space to house as many as 2500 animals in addition to the animals already made over to it by the impugned orders of the Ld. Trial Court under challenge before this Court.
(9) Dr. Girish Bhardwaj and Dr. Sunil Kumar Singh, Veterinary Officers attached to the SPCA, have appeared in the Court and have also informed that a recommendation is pending with the GNCT of Delhi for creation of twelve more infirmaries at the various entry / exit points of Delhi so that the animals being brought into the city are housed in such infirmaries at the entry points of Delhi and duly quarantined before being dispatched to the various places. They have reaffirmed that as of now, the SPCA, Boulevard Road, New Delhi is the only infirmary present where the animals are housed in six Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 11 of 38 different shelters constructed therein. It is reported that as of now they are having all the facilities to maintain the animals like housing, water, feed, fodder and veterinary health care facility in the premises itself. It is further reported that the death of animals as specified herein above has been due to various reasons like over crowding / stuffing of animals during transportation causing suffocation and lack of oxygen; over dosing of sedative while in transport; trauma & internal injuries caused by the jerk in the transport; severe muscular pain due to restlessness; tympany; asphyxia; while some have died due to old age, which aspects find due confirmation from their postmortem reports. It is argued by the Ld. Addl. PP for the State that this material / report is sufficient to refuse the custody of the animals to the same persons who were responsible for infliction of extreme form of cruelty upon them in gross indifference and violation of the existing rules which specifically provide that not only should these animals be certified with regard to the fitness to travel (certificate of fitness to travel for Cattle as per Schedule H, Rule 46 and certificate of fitness to travel for Sheep and Goats as per Schedule J, Rule 65 of Prevention of Cruelty to Animals Rules). It is also pointed out that the vehicles in which the animals were stuffed and transported and are now the subject matter of these applications / petitions, were devoid of any facilities of padding on the sides and on the floor, without any compartment, without any facility to provide for water and fodder on the way and without any medical expert or attendant with medical assistance to the said animals. It is submitted that the animals have been handed over to an infirmary created under the statute with full Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 12 of 38 facilities which take care of the animals and there can be no question of releasing them to the revisionists who are desperate to seek possession of these animals and house them at various places as detailed by them (i.e. at 11134, 11135, 11136 & 11137, Eidgah Road, Sadar Bazar, Delhi-55; Trader - Mohd. Anas Qureshi, License No. 562, Sheep & goats Livestock Market, Ghazipur, Delhi and Trader - Rizwan Qureshi S/o Furkan Qureshi, H. No. A46, G.D. Colony, Mayur Vihar, PhaseIII, Delhi - 110096) which would be in gross violation of the existing laws of the land as they have been found to be transporting the animals in vehicles whose release they are now seeking in the Revision Petition for purposes of slaughtering in gross violation of the various laws and rules there under [Indian Penal Code; Prevention of Cruelty to Animals Act, 1960; Prevention of Cruelty of Animals (Care and Maintenance of Case Property Animals) Rules, 2017; Transport of Animals Rules, 1978 / 2011 framed under the Prevention of Cruelty to Animals Act (Chapter IV Rules 46 to 56 dealing with cattle and Chapter VI Rules 64 to 75 dealing with Sheep & Goats); The Motor Vehicles Act; the Central Motor Vehicles (Eleventh Amendment) Rules 2015 and Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules 2017]. The animals were neither tagged nor they bore any identification marks as required. There is no certificate by the Veterinary Officer that the animals are fit to travel and healthy for the purposes of slaughtering. Further, the animals were stuffed into the vehicles / trucks not meant for purposes Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 13 of 38 of transportation of animals [in gross violation of The Motor Vehicles Act; the Central Motor Vehicles (Eleventh Amendment) Rules 2015 made application vide notification w.e.f. 01.01.2016 which provides for specific compartments to be created for the said purpose], which also makes the vehicles liable for confiscation and for cancellation of permit so granted to them. It is submitted that the laws framed by the Legislature regulating the sale, purchase and transportation of animals and also for prevention of cruelty upon them, are not paper tigers and it is not open for the Courts to conveniently look away as the issue directly relates to national health as none of the animals in question before this Court had the necessary certification from the Veterinary Inspector with regard to their health condition and ultimately would have been slaughtered for purposes of consumption irrespective of their health conditions. (10) In so far as the argument of the Ld. Counsel for the Revisionist with regard to the RTI response dated 24.01.2018 given by the Ministry of Environment, Forest and Climate Change pursuant to an RTI application is concerned, it is pointed out by the Ld. Addl. PP that the said reply is incorrect since the Prevention of Cruelty to Animals (Care and Maintenance of Case property Animals) Rules 2017 have been notified vide G.S.R. 495(E), dated 23rd May 2017 and published in the Gazette of India, Extra., Pt. II, Sec. 3(i), No. 396 dated 23rd May 2017 and came into force on 23.05.2017. (11) In so far as the release of vehicle is concerned, Ld. Addl. PP has submitted that till date the feeding charges which are required to Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 14 of 38 be deposited by the other revisionists / alleged owners of the animals have not so been deposited i.e. Rs.50/ per day in respect of Sheep and Goat and Rs.150/ per day in respect of cattle and a total sum of Rs.11,14,650/ is due upon all the revisionists / alleged owners of the animals (Rs.1,96,300/ upon the revisionist Mohd. Aslam). It is pointed out by the Ld. Addl. PP for the State that in a similar case before the Hon'ble Chennai High Court [Ref.: Prema Veeraraghavan Vs. State by the Inspector of Police, K10, Koyambedue P.S., Chennai and Anr. (Supra); Naseerulah Vs. State and G. Subramaniya Karthick (Supra); Abdul Nazer vs The State (Supra); Chinnasamy vs The State (Supra); Vikram vs Y. Fogullah Shariff (Supra) and Aruna Prasanna Vs. State (Supra)], where the cattle i.e. buffaloes were transported in painful conditions and the Ld. Sessions Judge had directed, the release of the animals to the alleged offenders till the disposal of the case, the Chennai High Court had been compelled to intervene and reverse the findings of the Ld. Sessions Court and upheld the findings of the Ld. Trial Court that such petitioners who were the alleged violators were not entitled to the return of the cattle even at the interim stage by observing that the transportation of these animals being in violation of the legal provisions and the object of the Prevention of Cruelty to Animals Act which was to prevent animals from being put to cruelty and it is imperative to implement both these Acts by the authorities concerned in strict sense and the lower courts are required to take note of these provisions and also see that as to how the Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 15 of 38 offenders should be punished properly. It is pointed out that the Hon'ble Chennai High Court took a note of the fact that many of the animals which had been handed over to the Goshala by the Ld. Trial Court, had expired on account of painful injuries they had sustained during the transportation as evident from the postmortem reports of the deceased animals. It was observed by the Hon'ble Chennai High Court that it was the fittest case where the Court has to come to the rescue of the animals and prevent cruelty meted out to the poor animals and the watchful thing of society which are taking care of the animals should be encouraged to stop this offence and stringent action should be taken as against those who violates the laws in future and even the vehicles which are used should be dealt with under the Motor Vehicles Act and punishment has to be imposed. (12) It is also pointed out by the Ld. Addl. PP that in the present case there are specific allegations that the animals i.e. sheep & goats and buffaloes and cows were being packed together which was in gross violation of the existing Laws and Rules specified as under:
Animals can only be sold and purchased in specific markets constituted for this purpose having license issued by Municipal Authorities.
Animals can only be purchased from licensed cattle markets after due clearance and tagging by Veterinary Inspectors and self created receipts from some local organization does not carry any legitimacy in the courts of law.
Each consignment (vehicle) shall bear a label showing in Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 16 of 38 bold red letters the name, address and telephone number of the consignor and consignee the number. Animals subjected to sale are required to the specifically tagged for purposes of identification and clearance. Whenever the animals are required to be transported, a qualified Veterinary Inspector to certify the animals are in a fit condition to travel by rail or road and are not suffering from infectious or contagious or parasitic disease. It is only those animals who are not sick and so cleared by the Veterinary Inspectors who reach the abattoirs where they can be slaughtered by use of scientific and hygienic techniques.
Animals can only be transported by road in separate vehicles specifically meant for transportation of the animals which vehicles are required to have a valid permit. It is mandatory for these vehicles to have suitable partitions / separate portions or panels or modifications as required under Rule 125E of the Central Motor Vehicles (Eleventh Amendment) Rules 2015 and such a vehicle shall not be used for any purpose.
Not more than 40 sheep and goats can be transported at one time in a bigger vehicle.
Sheep and goats are required to be transported separately, rams and male young stock not to be mixed with female stock in the same compartment and kids under six weeks of age be kept in separate panel.
Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 17 of 38 During transit the first aid equipment has to accompany. Sufficient Food and Fodder shall be carried to the last during the journey with water facilities during regular intervals.
Material for padding should have been placed on the floor to avoid injury if an animal lies down which padding shall not be less than 5 cm thick.
(13) In support of his contentions the Ld. Addl. PP for the State has also placed his reliance on the following judgments:
1. Prema Veeraraghavan Vs. State by the Inspector of Police, K10, Koyambedue P.S., Chennai and another, Crl.R.C. No.1534 of 2001 reported in 2002 (1) CTC627
2. Naseerulah Vs. State and G. Subramaniya Karthick reported in 2013 (1) LW (Crl) 614.
3. Abdul Nazer vs The State, Criminal Revision Case No. 463 of 2014, decided on 06.08.2015 (Madras High Court).
4. Chinnasamy vs The State, Criminal Revision Case No. 951 of 2013 and M.P. Nos. 1 and 2 of 2012, decided on 11.06.2015 (Madras High Court).
5. Vikram vs Y.Fogullah Shariff, Criminal Revision Case No. 1408 of 2013 and M.P.No. 1 of 2013, decided on 11.06.2015 (Madras High Court).
6. Aruna Prasanna Vs. State, Crl. R.C. No. 320/2013 & M.P. No. 1 of 2013, decided on 23.04.2013 (Madras High Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 18 of 38 Court).
(14) It is pointed out by the Ld. Addl. PP for the State that in a similar case [Aruna Prasanna Vs. State (Supra)] relating to transport of 15 cows along with their calves which were seized by the police under the Prevention of Cruelty to Animals Act, an application for interim custody of the cattle on Superdari was granted by the Ld. Magistrate by imposing certain conditions. When the matter went to Chennai High Court it was pointed out that as per the provisions of Prevention of Cruelty to Animals Act, the accused / owner is not entitled to the custody of the animals and under the Transport of Cattle Rules every consignment of cattle should bear the name of consignor and the consignee and the cattle had been illegally transported without the necessary certification from the Veterinarian about their fitness to travel. The Hon'ble Chennai High Court after considering the Transport of Cattle Rules and the violations committed thereof, set aside the order passed by the Ld. Magistrate and held that the petitioner who was dealing in welfare of animals was competent to take care and welfare of the cattle and subject to certain conditions, handed over the animals to the society of the petition whose name had figured in the list of interested non official individuals duly appointed by the SPCA.
(15) On the other hand, Ld. Counsel for the Revisionist has argued that the present revision petition is maintainable and has placed his reliance upon the judgment of Himachal Pradesh High Court in the case of Parveen Kumar Vs. The State of Himachal Pradesh & Ors. reported in 1989 Cri.L.J. 2537 in which the Hon'ble Himachal Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 19 of 38 Pradesh High Court has placed its reliance upon the case of Bharat Heavy Electricals Ltd. Vs. State and Anr, reported in 1981 Cri. LJ 152 and Ishar Singh Vs. The State of Punjab reported in 1974 Cri.L.J. 231. The Ld. Counsel for the Revisionist also placed his reliance upon the following authorities:
1. Raju & Ors. Vs. State of Rajasthan reported in 1992 Cri.L.J. 723.
2. Ram Kishori Thakur Vs. Shyam Bihari Giri & Anr.
reported in 1991 (1) BLJR 483.
3. Dwarika Prasad Vs. State of M.P. Writ Petition No. 115/2016.
4. Sanjeev Sharma Vs. State of Delhi Crl. M.C. No. 2902/2009, decided on 23.11.2010.
Observations and Findings of the Court:
(16) I have heard the rival contentions, the lengthy arguments and the grounds raised before me both on the aspect of maintainability and merits. However, the preliminary issue on the basis of which I am reluctant to go into the merits of the grounds, is the maintainability of the Revision Petitions as raised by the Ld. Addl.
Public Prosecutor. At the very Outset I may observe that the revision petitions impugn the orders passed by the Ld. Trial Court dismissing the applications for release of animals / vehicle carrying the animals on Superdari. When a similar issue came up for consideration before the Hon'ble Delhi High Court in the year 1985 in the case of Anisa Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 20 of 38 Begum Vs. Masoom Ali & Ors. (Supra) it was observed by Hon'ble Mr. Justice J.D. Jain that the order dismissing the Superdari application did not decide the rights of the parties and was an interlocutory order against which no revision petition would lie. The Hon'ble Delhi High Court while considering the judgment of Bharat Heavy Electricals Ltd. Vs. State and Anr, reported in 1981 Cri. LJ 152 so relied upon by Himachal Pradesh High Court, had taken a different view and I quote as under:
".......... (4) The controversy between the parties lies in a narrow compass, the crucial question for determination being whether the custody of the seized articles be entrusted to the complainantpetitioner or the accused respondent pending conclusion of the trial. However, the learned counsel for the petitioner has at the outset assailed the impugned order as being without jurisdiction in view of the bar contained in Section 397(2) of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). Section 397(1) of the Code empowers the courts specified therein viz. the High Court Sessions Court to call for the records of inferior criminal court and examine them for the purpose of satisfying themselves as to whether a circumstance, finding or order of such inferior court is legal, correct or proper or whether the proceedings of such inferior courts are regular. The said provision is very widely worded and the obvious object of conferring powers of revision is to give superior criminal courts a supervisory jurisdiction in order to prevent miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent impropriety which may result in hardship injustice or injury to one party or the other. However, with a view to curtail long delays in ensuring expeditious disposal of Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 21 of 38 criminal proceedings the legislature has now inserted Subsection (2) and curbed the revisional power of the High Court/Sessions Court in respect of any interlocutory order passed in any appeal, inquiry, trial or other proceeding. So the crucial question which falls for determination is whether an order under Section 451 of the Code, as the order of the learned Metropolitan Magistrate dated 28th November 1984 purports to be, is in the nature of an interlocutory order so as to be immune from the revisional jurisdiction of the Sessions Court/High Court or it is an order of the type over which the Sessions Court/High Court can exercise revisional jurisdiction.
(5) The expression "interlocutory order" has not been defined either in the Code or elsewhere. However, its meanings and implications have been considered by various courts both English and Indian. In para 506, Halsbury's Laws of England, 26th Volume (Fourth Edition), it is stated that:
"An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations or right already given in the final judgment are to be worked out, is termed "interlocutory". An interlocutory order, even though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals."
Para 504 of the said treatise amplifies the position further stating that: "....A Judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. It is impossible to lay down principles about what is final and what is interlocutory. It is better to look at the nature of the application and not at the nature of the Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 22 of 38 order eventually made."
(6) The last part of the aforesaid statement rests on the observations of Lord Denning M.R in Salter box & Co. Vs. Ghosh, (1971) 2 All Er 865. In the course of his speech, the learned Law Lord observed : "In Standard Discount Co. v. La Grange, (1877) 3 Cpd 67 and Saloman v. Warner, (1891) 1 Qb 734 & 735, Lord Esher Mr said that the test was the nature of the application to the court and not the nature of the order which the court eventually made. But in Bozson v. Altrincham Urban District Council, (1903) 1 Kb 547, the court said that the test was the nature of the order as made. Lord Alveratone C.J. said that the test is. 'Does the judgment or order, as made, finally dispose of the rights of the parties ?' Lord Alverstone C.J. was right in logic but Lord Esher Mr was right in experience. Lord Esher MR's test has always been applied in practice."
(7) The meaning and ambit of the expression "interlocutory order" as used in Section 397(2) has been considered by the Supreme Court in several decisions. In Smt. Parmeshwari Devi v. The Stale and another, Mr 1977 Sc 403, the petitionerSmt. Parmeshwari Devi had in response to an order under Section 94 of the Old Code filed a reply expressing her inability to produce the documents staling the circumstances pertaining thereto. She was not a party to the trial but even then the Magistrate issued order on 8th August 1974 i.e. after coming into force of the Code, directing her to attend Court so as to enable it to put her a few questions for satisfying itself regarding where abouts of the documents. The said order was challenged in revision invoking the bar of Section 397 (2) of the Code. The Supreme Court observed: "The Code does not define an interlocutory order, but it obviously is an intermediate order, made during the preliminary stages of an enquiry or trial.
Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 23 of 38 The purpose of Subsection (2) of Section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it. But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adversely affects his rights."
(8) The Supreme Court also adverted to the following observations appearing in its earlier decision in Mohan Lal Magan Lal Thacker Vs. State of Gujarat,:
"An interlocutory order though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals." It then said: "It may thus be conclusive with reference to the stage at which it is made, and it may also be conclusive as to a person, who is not a party to the enquiry or trial, against whom it is directed."
(9) Relying on these observations, it has been contended by the learned counsel for the respondent that the order dated 28th November 1984 of the learned Magistrate must be deemed to be a final order in the sense that even if it is not conclusive of the main dispute it is conclusive as to the controversy regarding the custody of the seized articles, more so when it adversely affects the rights of the respondent. It is urged by him that at any rate such an order cannot be termed as interlocutory one and would fall within the class of orders called "intermediate orders" or "orders of moment" by the Supreme Court in its subsequent decisions. In Amar Nath & Others Vs. State of Haryana & Ors., the Supreme Court was dealing with an order summoning the appellants in a Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 24 of 38 complaint case, the appellants having been earlier exonerated by the police in their report: under Section 173 of the Code. A question arose whether the order of summoning was an interlocutory order within the meaning of Section 397 (2). The Supreme Court observed : "Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" on Section 397 (2) of the 1973 Code has been used in a restricted sense and not in any broad of artistic sense. It merely denote 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 Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such order steps in aid of the pending proceedings may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which arc 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."
(10) Again the same very question cropped up for consideration before the Supreme Court in Madhu Limaye Vs. State of Maharastra. On an examination of several decisions both of Indian and English Courts including the decision of the Federal Court in S. Kuppuswami Rao v. The King the Supreme Court said Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 25 of 38 that : "But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397 (1) ..................In such a situation it appears to us that the real intention of the legislature was not to equate the expression "interlocutory order"
as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (supra), but, yet it may not be an interlocutory orderpure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction. We think that the bar in Subsection (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitutions yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397 (2)." The Court concluded by saying that : "We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of Sub" section (2) of Section 397, In our opinion it must be taken to be an order of the type falling in the middle course."
(11) In the said case the Sessions Court had vide impugned order rejected the application of the accusedpetitioner challenging the jurisdiction of the court to proceed with the trial on various grounds, for instance, want to sanction for prosecution by the competent authority. It was in this context that the Supreme Court applying the test, "If the order in question is reversed would the action have to go on ?"
Concluded that an order rejecting the plea of the Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 26 of 38 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).
(12) Still later the Supreme Court explained the nature and scope of an interlocutory order in V.C. Shukla Vs. State, . While reaffirming its earlier decision in Amar Nath (supra), and expressing its agreement with the exposition of law by the learned Judges in Madhu Limaye, S. Murtaza Fazal Ali, J., who spoke for the majority, observed : "We might reiterate here even at the risk of repetition that the term "interlocutory order" used in the Code of Criminal Procedure has to be given a very liberal construction in favor of the accused in order to ensure complete fairness of the trial because the bar contained in Section 397 (2) of the Code would apply to a variety of cases coming up to the courts not only being offences under the Penal Code but under numerous Acts. If, therefore, the right of revision was to be barred, the provision containing the bar must be confined within the four corners of the spirit and the letter of the law. In other words, the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final."
(13) His Lordship summed up the legal position saying 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 not a final decision or judgment on the matter in issue.
(14) In view of the aforesaid criteria an order under Section 451 of the Code must be said to be essentially interlocutory in nature. Section 451 empowers a criminal court to make such order as it thinks fit for the proper custody of the property produced before it Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 27 of 38 during any inquiry or trial, pending conclusion of the inquiry or trial. The purpose of such an order obviously is to preserve the property either as evidence or in order to make a proper order after the case is over. No doubt, Section 451 gives wide discretion to the court to make orders for proper custody of the property pending trial but it does not confer jurisdiction upon it to investigate and decide the question of title or ownership of the rival claimants to the property. An order under Section 451 is not intended even to decide the right of the parties to pass on the property produced before the court and it is only intended to ensure proper custody of the property during the pendency of the trial. Of course, the order being discretionary in nature the Court has to exercise the discretion vesting in it judicially keeping in view all the circumstances of the case. In the process the Court may incidentally be guided by the consideration as to who is the person prima facie entitled to the possession of the case property and hand over its possession to him with a view to safeguard his interest but that may not be the sole consideration for the Court while entrusting custody of the case property or property used in the commission of an offence etc. to any of the rival claimants. One cannot be oblivious to the fact that the property produced in Court during the course of an inquiry or trial is custodia legis and it remains so even when its custody is entrusted to anyone of the rival claimants or anyone else because he is liable to produce the same as and when directed by the Court. The power to recall entrustment for any reason which the Court may deem fit inheres in the Court in the very nature of the circumstances and the purpose for which the properly is entrusted on Superdari. The duration of such entrustment can at best be until the conclusion of the trial. So, in the eye of law, his possession or Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 28 of 38 custody is only that of Court. Section 452 specifically deals with the disposal of such property at the conclusion of the inquiry or trial. It is at that stage that the Court has to determine as to which of the rival claimants is entitled to possession thereof. As a necessary corollary it would follow that the entrustment of the case property to any of the rival claimants under Section 451 does not amount to adjudication of any right much less the competing rights of the rival claimants Of course, other ways of the disposal of the case property as envisaged in the said Section have also to be considered. Looked at the whole matter from this angle it cannot be said that the order of the learned Magistrate purported to decide or affect the right of the rival claimants in the instant case. Obviously he made the order giving custody of the seized goods to the petitioner as she was the complainant and had claimed that the goods in question belonged so her deceased husband. No doubt, the respondent, who is arraigned as an accused, produced some documents to show that he had purchased such like goods but it was not the stage for the learned Magistrate to embark upon a detailed inquiry. The stage for evidence regarding the stolen nature of the goods has yet to arrive and it is only at the conclusion of the trial that the Court can come to the conclusion whether the goods in question belonged to the deceased husband of the complainant or not. So, the order of the learned Magistrate cannot be said to suffer from any judicial or legal infirmity. It cannot be said to be even unjust, improper or capricious as adversely affecting the rights of the respondent. By no stretch of reasoning it can be said to be a "matter of moment" as envisaged in Amar Nath (supra).
(15) As for the case law on the subject, there is sharp divergence of judicial opinion in this respect one line of decisions holding that an order under Section 451 Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 29 of 38 is purely interlocutory in nature and the other holding that it is a final order or at any rate something like an intermediate order which affects the valuable rights of the parties to hold and keep the property during the pendency of the case Shamrao Sampatrao Khanderai v. State of Maharashtra and another, 1979 Cri. Lj 1457 (a Division Bench judgment of Bombay High Court), Natha Lal v. State, 1976 Cri Lj 358 (Allahabad), Vasu v. T Unnikrishnan and another, 1983 Cri. Lj 1194. Jacob and another, v. Jayabharat Credit & Investment Co Ltd, & others, 1983 Cri. Lj 1584 (both of Kerala High Court) and V. Parakashan v. K P. Pankajakishan & Anr 1985 Cri. Lj 951 (also Kerala High Court) support the former view while Radha Prasad Goala v. Manir Mia and another, 1980 Cri Lj Noc 6 (Gauhati), M. Abbas v. State of Karnataka 1980 (2) Karnataka. Law Journal 259, Bharat Heavy Electricals Ltd. v. State and another, 1981 Cri. Lj 152 (Andhra Pradesh) and RK.Jaiswal v. State of U P. and others, 1984 (2) Crimes 677 (Allahabad) are authorities supporting the latter view. In Shamrao Sampatrao Khanderai (supra), the learned Judges said : "On the face of it, the purpose of Section 451 is to direct the custody of the property till the case is decided. Such an order would obviously be an interlocutory order."
(16) In Nathu Lal's case construing the expression 'interlocutory order' the Allahabad High Court held that "an order under Section 451 of the Code does not decide the right of any person or terminate any proceeding and being an order passed during the pendency of the proceeding for the purpose of preservation and protection of the property till the final determination of proceedings, the order can be treated only as an interlocutory order within the meaning of Section 397(2) of the Code and therefore revision would not lie."
Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 30 of 38 (17) In Vasu's case (supra), a learned Judge of Kerala High Court has given the following reasons in support of his view : "If a Magistrate once passed an order under Section 451 of the Code on an appreciation of facts and circumstances existing at that time or brought to his notice at that time, it cannot be said that till the final disposal of the case when he could pass an order under Section 452 of the Code, he is functus officio to pass appropriate orders. There may be a case where a person to whom the Magistrate directed the property to be given may be reluctant to continue in custody after some time. It would be open to him to request the court to relieve him of custody for which the Magistrate will have to pass a disposal order afresh. There may be a case where a person who is given custody under Section 451 of the Code is not taking care of the property or is misusing it. That may occasion a fresh order or a modified order being passed by the Magistrate. Therefore, it cannot be said that the order once passed under Section 451 of the Code is a final order. It is necessarily interlocutory in character."
In Jacob's case (supra), another learned Judge of the same High Court has said: "The complainant cannot get over the bar imposed by Section 397(2) by invoking Section 482 of the Code. First of all, his rights are not finally settled by the order refusing interim custody of the vehicle to him. If ultimately in the case he comes out with flying colours, he can walk away with the vehicle in spite of the fact that interim custody of the same was given to somebody else. The inherent powers of the court under Section 482 are not to be invoked by a party to the case to challenge interlocutory orders such as giving interim custody of the property pending trial. Even if interim custody was wrongly denied to a party, he will have to wait till the Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 31 of 38 disposal of the case as it cannot be said that the order has resulted in an abuse of the process of court."
(18) In V.Parakashan (supra), yet another learned Judge of the same High Court has dealt with the matter in a very lucid manner. Says he : "The maximum duration of the arrangement is only till conclusion of "the enquiry or trial. It follows that the arrangement is only temporary and the main object is to protect or preserve the property pending trial. Even if the person entrusted with interim custody is the owner, his possession or custody during the period of entrustment is only as representative of the Court and not in his independent The entrustment or custody will not invest him with any preferential right to ownership or even possession ....................... The arrangement once made is not even final till the conclusion of the inquiry or trial The Court is having the right to terminate the entrustment, get back the property from him and entrust it to somebody else whom the Court deems fit in appropriate cases even before the conclusion of the inquiry or trial. So much so, the person entrusted with the property may also be entitled to seek termination of the entrustment and surrender the property even before the conclusion of trial."
(19) I am in respectful agreement with the reasons give by various learned Judges in the aforesaid decisions and they perfectly accord with the view already expressed by me above.
(20) Coming to the authorities referred to by the learned counsel for the respondent, I may say with all the respect at my command that none of them advances any cogent reason for the view that an order for interim custody made under Section 451 is not an interlocutory order. In M Abbas a learned Single Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 32 of 38 Judge of Karnataka High Court has noticed the relevant paragraphs appearing in Halsbury's Laws of England as extracted by the Supreme Court in Madhu Limaye and has also adverted to the observations of the Supreme Court in Madhu Limaye to which I have already alluded. Applying the criterion laid down in Madhu Limaye s case (supra), he has observed : "The provisions of Section 451 Cr. P.C. empower 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 Section 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."
(21) Obviously the conclusion arrived at by the learned Judge is against the very letter and spirit of Section 451 inasmuch as there is absolutely nothing therein to warrant an inference that rights of the concerned parties are to be at all adjudicated. As stated by me above, that stage is reached only after the conclusion of the trial as envisaged in Section 452 which deals with the disposal, at the conclusion of the inquiry or trial, of any property or document produced before it or in its custody etc. At that stage the Court has to determine how the property is to be disposed of and it has, inter alia, to consider the competing claims of the rival claimants to be entitled to possession thereof. In other words, the Court has to decide only the right to possession of the property and not the ownership of the property. Hence, there is an obvious fallacy in the reasoning that an order under Section 451 purports to decide finally any of the rights of the parties and as such the aggrieved Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 33 of 38 party has a right to challenge the same in revision. On a parity of reasoning I am unable to subscribe to the following observations of a learned Single Judge of Andhra Pradesh in Bharat Heavy Electricals Ltd. (supra): "The order in question substantially affects the rights of the parties. If so, it cannot be considered to be an interlocutory order."
(22) Reference has been made by the learned Judge to Amur Nath (supra). As already observed by me, the question of an order under Section 451 substantially affecting the rights of the parties does not arise at all.
(23) In Radha Prasad Goala (supra), to a learned Single Judge of Gauhati High Court has expressed the view that ' "An order for custody and disposal of property pending trial is an order touching right to property... .....................The order for custody and disposal is final between the contending parties to enjoy and retain the property until the trial is over.................. in fact an issue is determined namely who amongst the contending parties is best entitled for the custody of the property pending conclusion of the trial ? The said issue is determined by the Magistrate ........In fact by virtue of such an order a person's right to possess his own party is taken away."
(24) For the reasons already stated by me, I may say with great respect that the fallacy underlying the reasoning of the learned Judge is that an order under Section 451 purports to decide the right to property or right to possess the property whereas it is not so.
(25) In R.K. Jaiswal (supra), a learned Judge of the Allahabad High Court has simply observed : "To me, it does not appear to be so. The order finally disposed of the application for custody of the truck." (26) It bears repetition that such an order does not decide anything finally. It is made during the progress Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 34 of 38 of the inquiry or trial for a specific purpose i.e. interim custody of the property produced before the court. It is a different thing that while doing so the court may, inter alia, take into consideration as to who is the person prima facie entitled to its possession but that would not mean that any party is entitled to interim custody of the property as of right. If the court does so it is only to facilitate proper exercise of judicial discretion and nothing more.
(27) To sum up, therefore, I find that the learned Additional Sessions Judge' did not have jurisdiction to revise the order of the Magistrate in view of the specific bar contained in Section 397 (2) of the Code.
(28) Finding himself in thispredicament, the learned counsel for the respondent has canvassed with great vigour that even if an order under Section 451 assumed to be an interlocutory one and exercise of revisional power is barred by Subsection (2) of Section 397, this Court can still examine the legality, validity and propriety of the order in exercise of its inherent power under Section 482 in order to prevent abuse of the process of any court or to otherwise secure the ends of justice. No doubt, the High Court can interfere with and set aside an order in exercise of its inherent power if it amounts to an abuse of process of the court or if for the purpose of securing ends of justice it considers its inference absolutely necessary and in that event the bar contained in Section 397(2) cannot limit or affect the exercise of inherent power. However, as observed by the Supreme Court in Madhu Limaye (supra), the exercise of inherent power under Section 482 should not be resorted to if there is specific provision in the Code for the redress of the grievance of the aggrieved party and it should not be exercised as against the express bar of law engrafted in any other provision of the Code. Further, power under Section 482 being extraordinary in its very Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 35 of 38 nature, it has to be exercised sparingly ex debito just to prevent the abuse of process of any court or otherwise to secure the ends of justice. The order of the learned Magistrate directing entrustment of the custody of the property in (Question to the petitioner cannot be said to suffer from any legal infirmity or impropriety which would warrant invocation of inherent power by this Court.
(29) As a result, this revision petition is allowed, the impugned order is set aside and the order of the learned Metropolitan Magistrate dated 28th November 1984 is restored......"
(17) Recently also, the Hon'ble Delhi High Court had an opportunity to deal with a similar issue in the case of Rajiv @ Raj Vs. State in Writ Petition (Crl.) No. 854/2011 which was directed against the order of the Ld. CMM dismissing the application for release of vehicle on Superdari wherein it was observed by Hon'ble Mr. Justice Ashutosh Kumar vide judgment dated 17.09.2015 that the said order dismissing the application for Superdari was an interlocutory order against which no revision would lie and hence the Writ Petition (Crl.) was maintainable.
(18) In so far as the case of Sanjeev Sharma (Supra) is concerned, I may observe that it is on totally different facts wherein a Closure Report had been filed and hence the order directing release of vehicle on Superdari was not considered as an Interlocutory Order. Even otherwise, on merits the Hon'ble Delhi High Court had observed that the Ld. ASJ had committed grave error in releasing the vehicle on Superdari even before the findings of the Ld. MM on the closure Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 36 of 38 report which had been filed by the police and even before the protest petition had been decided and hence, the said authority does not help the revisionist in any manner. In so far as the other judgments relied upon by the Ld. Counsels for the Revisionists are concerned, the Hon'ble Delhi High Court having considered the same and taken a different view, this Court is bound by the view taken by the Hon'ble Delhi High Court.
(19) Hence, by application of above principles of law to the facts of the present case, I hereby hold that the impugned order dismissing the application filed by the Revisionist before this Court who was the accused before the Ld. Trial Court is only a temporary order which does not decide the rights of the parties before it. The order only seeks to protect and preserve the property till decision of the case and the rights of the parties are finally adjudicated upon and decided. Hence, in this view of the matter, I hold that the present revision petition is not maintainable.
(20) Therefore, in the light of the aforesaid and without going into the merits of the voluminous grounds raised before me and without giving any opinion on merits of the same, revision petition is hereby Dismissed being not maintainable. Trial Court Record be sent back along with the copy of this order.
(21) Further, in view of the fact that a wrong reply dated 24.01.2018 has been furnished by the Ministry of Environment, Forest and Climate Change with regard to the non implementation of Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animal) Rules, 2017 despite the fact that the said rules have come Mohd. Aslam Vs. State (Crl. Revision No. 37/18) Page No. 37 of 38 into force w.e.f. 23.05.2017, is concerned, it is not only a serious matter but also the violation of the RTI Act. Therefore, on request of the Ld. Addl. PP for the State, a copy of this order be given dasti to him for forwarding the same, through the Director of Prosecution, to the Chief Secretary, GNCT of Delhi and Principal Secretary, Ministry of Environment, Forest and Climate Change for information and necessary action for giving false / wrong reply under the RTI. (22) Revision file be consigned to Record Room.
KAMINI Digitally signed by
KAMINI LAU
LAU Date: 2018.04.23
16:40:30 +0530
Announced in the open court (Dr. KAMINI LAU)
Dated: 23.04.2018 Special Judge (PC Act), CBI01,
Central District, Delhi
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