Madras High Court
State Represented By Inspector Of ... vs Renuka Devi on 15 March, 1999
Equivalent citations: 1999CRILJ2955
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. Crl. R.C. No. 318/98 and Crl. R.C. No. 334/98 are being disposed of by this common order, as the issues and the parties in both the matters are the same.
2. By the order dated 10-2-98, the learned Principal Special Judge, for C.B.I. Cases, Chennai allowed Crl. M.P. Nos. 206 and 207 of 1997 and directed the C.B.I., the petitioner herein to return the documents seized which are mentioned as Item Nos. 45, 46, 47, 53, 77, 79 to 82 and 84 in the search list prepared at the time of seizure imposing some conditions. This order is sought to be challenged before this Court in both these Revisions by the Inspector of Police SPE/CBI/ ACB, Chennai.
3. The brief facts are as follows :--
(a) On 3-9-97 one Radhakrishnan, the husband of the respondent Renukadevi, while working as U.D.C. at the office of the Director, Board of Apprentice Training, Taramani, Chennai, accepted the bribe amount of Rs. 2,000/- from one Manimaran, a diploma holder in Mechanical Engineering, as a motive or reward for the recruitment of Apprentice in the State Transport Corporation and the C.B.I, police arrested him and a case was registered in R.C. No. 52(A)/97 under Section 7 of the Prevention of Corruption Act, 1988.
(b) When his house was searched, he was found in possession of Rs. 12,18,739/- which the accused had illegally acquired disproportionate to the known sources of his income. With reference to this, a separate case was registered in R.C. No. 63(A)/97 under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act.
(c) While searching the premises of the accused, various documents were seized under search list. During the course of investigation, the respondent Renukadevi, wife of the accused filed a petition on 21 -11 -97 in Crl. M.P. No. 206/ 97 before the Principal Special Judge for C.B.I. cases. Chennai under Section 457, Cr.P.C. requesting for the return of the documents, namely, item Nos. 45, 46, 47, 53, 77 and 84 as described in the search list.
(d) She had also filed another application in Crl. M.P. No. 207/97 on 2-12-97 requesting for the return of the documents, namely, item Nos. 79 to 82 as described in the search list prepared at her residence by the C.B.I. Police.
(e) The prayer made in the said petitions filed by the wife of the accused was vehemently opposed by the C.B.I, police that those documents seized during the course of investigation are very much essential for continuing the investigation, since those documents are the materials which would relate to the properties acquired by the accused illegally and which are the subject-matter of investigation in R.C. No. 63(A)/97 registered for the offence under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act for the possession of the properties disproportionate to the known sources of his income.
(f) Despite this objection, the learned Principal Special Judge allowed both the petitions and directed for return of those documents after taking Xerox copies of those documents and to proceed with the investigation with those Xerox copies and observed that those true xerox copies could be marked as exhibits during trial. Hence, these Revisions.
4. The learned Counsel appearing for the C.B.I./the petitioner herein, while attacking the impugned common order, would contend that these documents being original are the materials for the purpose of investigation and when these documents reflect the illegal acquisition of money by the husband of the respondent, the same are very much essential to continue the investigation, especially when these documents are relevant materials to prove that the properties were acquired by the accused in the name of his wife, which are disproportionate to the known sources of his income, the order of the Special Judge returning these documents by allowing the petitions filed by the respondent, the wife of the accused to use those documents, not only improper, but also would amount to preventing the Investigating Agency to conduct effective investigation with reference to the charge under Section 13(2) and 13(l)(a) of the Prevention of Corruption Act, 1988.
5. The learned Counsel for the respondent, the wife of the accused, in justification of the impugned order, would submit that these two revisions filed against the common order passed by the Special Judge are not maintainable, in view of Section 397(3), Cr.P.C. and under Section 19(3)(c) of the Prevention of Corruption Act, as they provide a bar for entertaining the revision in relation to the interlocutory order and that the reasonings given in the impugned order are also justifiable.
6. I have heard the counsel for the parties and gone through the records.
7. Let me first take up the preliminary question which has been raised by the counsel for the respondent with reference to the maintainability of the Revision.
8. According to the counsel for the respondent, the impugned order directing to return the documents seized by the C.B.I. police is an interlocutory order and as such, it could not be revised under Section 397(2), Cr.P.C. Furthermore, Section 19(3)(c) of the Prevention of Corruption Act also would prohibit such a revision challenging the interlocutory order. The learned Counsel for the respondent would cite the following authorities :--
(1) Murlidhar v. State of U.P., 1992 Cri LJ 2032;
(2) Sarojini Amma v. Sarojini, 1988 Cri LJ 1362;
(3) V.C. Shukla v. State, ;
(4) Chitra Sankaranarayanan v. State by Inspector of Police, Pondy, 1994 (1) MWN (Cr) 110;
(5) Municipal Corporation of Delhi v. Ram Kishan Rohtagi, 1983 Mad LW (Crl) 142 : 1983 Cri LJ 159;
(6) Velusamy v. State, 1995 (1) MWN (Cr) 86;
(7) Virendrakumar J. Handa v. Dilawarkhan Ali Khan, 1992 Cri LJ 2476 ;
(8) Babubhai v. Mukta Sagar Mandal, 1992 Cri LJ 2103;
(9) Yadav Agencies (P) Ltd. v. Philomina, MLJR (Cri) 2590 (sic);
(10) State of Manipur v. Shanti Kumar Jain, 1978 Cri LJ NOC 41 (Gau);
(11) Radhika Devi v. State, 1988 All LJ 522;
(12) Vasu v. T. Unnikrishna, 1983 (1) Crimes 899 : 1983 Cri LJ 1194.
9. In reply to this objection, the learned Counsel for the C.B.I., on the strength of the decision in Joshy v. State, 1986 Cri LJ 263, would submit that the revision is maintainable, since the impugned order passed by the trial Court is under Section 457, Cr.P.C. and as such, it cannot be said to be an interlocutory order,
10. In the light of the above submissions, the short question that arises for consideration in deciding the preliminary issue is whether the impugned order directing to return the documents pending investigation to the respondent, the wife of the accused, is an interlocutory order or not.
11. If the answer for this question is 'yes', then there is no question of going into the merits of the order. Therefore, let me now analyse the principle of law laid down by this Court as well as the Apex Court with reference to the meaning and nature of the interlocutory order.
12. In this context, it is appropriate to quote the relevant provision under which the applications which invited the impugned order, were filed before the trial Court. Admittedly, these applications have been filed under Section 457, Cr.P.C. Section 457, Cr.P.C. provides thus :--
457. Procedure by police upon seizure of property :--
(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.
13. The reading of the provision would make it clear that in order to invoke the provision of Section 457, Cr.P.C, three conditions are to be fulfilled :--
(1) There must be a seizure of the property;
(2) Such seizure must have been reported to the Magistrate;
(3) The seized property has not been produced before the criminal Court during the enquiry.
14. Admittedly, in this case, the seizure of the materials including the materials sought to be returned were reported to the trial Court. Equally, it is an admitted fact that these documents were not produced before the Court and the same have been kept with the police for the purpose of investigation. Therefore, the applications filed under Section 457, Cr.P.C. are maintainable in this case. Though in the counter filed before this Court by the respondent, the wife of the accused, it is stated that the order under Section 451, Cr.P.C. cannot be revised in this Revision, this may not be correct, since the respondent herself filed an affidavit and petitions before the trial Court requesting the return of the documents under Section 457, Cr.P.C. The reading of the affidavit and the impugned order also would reveal that the Special Judge had invoked only Section 457, Cr.P.C. and passed the impugned order.
15. But, it shall be pointed out, at this stage, that in a proceeding under Section 457, Cr.P.C. the Court is required to confine itself only to find out as to who is entitled to the possession of the property. In the affidavit filed by the respondent before the trial Court, she would state that the documents in question belong to her and they are not at all concerned or connected with any offence or case now under investigation by the C.B.I. against her husband and as such, she is entitled to get those documents and to possess the same.
16. But, the case of the C.B.I./the petitioner herein is that all those documents were seized from the house of accused, the husband of the respondent and that during the course of investigation, the respondent's husband was found in possession of Rs. 12,18,739/- and the properties are disproportionate to the known sources of his income and as such, those documents which reflect the illegal acquisition of the properties by the husband of the respondent could not be returned, as they are very much essential for the continuation of further investigation.
17. In the light of the divergent pleas, the trial Court has to decide the applications by finding out whether the respondent is entitled to possession under Section 457, Cr.P.C.
18. In this context, let me now see about the nature and consequences of the order passed under Section 457, Cr.P.C.
19. It cannot be debated that every order which is not final need not be an interlocutory order. There could be intermediate category of order also, which is not final. When an order, though an interim order, decides the issues on merits and determines the issues affecting the rights of the parties, it cannot be an interlocutory order. In other words, any order pending disposal of the case passed by the trial Court as an interim arrangement, which does not decide the issue, or right can certainly be called as an interlocutory order.
20. But, when the order decides the right of possession, as contained in Section 457, Cr.P.C. in my view, it cannot be said to be an interlocutory order. In other words, the term interlocutory in Section 397(2), Cr.P.C. has been used in a restrictive sense and not anything broad or artistic sense. It merely denotes the order of a purely interim and temporary nature which does not decide or touch the important right of the parties.
21. Any order which substantially affects or decides the right of the parties cannot be said to be an interlocutory order, so as to bar a revision against that order. As indicated earlier, some orders may not be equated with the expression interlocutory order and the same may not be final order too. Merely because it is not a final order, it cannot be called as interlocutory order pure or simple. Some kinds of orders may fall in between the two. They are called as an intermediate order. In that case, the bar in Section 397(2), Cr.P.C. is not attracted to such kind of intermediate order.
22. The "interlocutory orders" are not to be confused with the "intermediate orders" which though not final orders, are sometimes passed during the course of trial or enquiry. When such intermediate orders do not decide the dispute of the parties finally, it could decide some points of controversy regarding rights finally and then in respect of those orders, the bar put in Section 397, Cr.P.C. does not get attracted.
23. As pointed out by the learned Counsel for the petitioner, granting custody under Section 457, Cr.P.C. by deciding the right to possession of the property is not an interlocutory order, as held in Joshy v. State, 1986 Cri LJ 263.
24. The Apex Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi (supra) would hold that even assuming that the revision is a bar, Section 482, Cr.P.C. confers separate and independent power on the High Court to pass order when substantial injustice has been done to the parties, where the process of the Court has been seriously abused.
25. In the light of the above legal position, I have no difficulty in coming to the conclusion that the impugned order would squarely come under Section 457, Cr.P.C. as the applications were filed before the trial Court claiming for the return of the documents in question putting the plea that she is entitled to get possession of those} documents under Section 457, Cr.P.C. Therefore, I am of the view that the Revision is perfectly maintainable.
26. While going into the reasonings and the nature of the relief granted by the trial Court, I am of the view that the trial Court by directing the C.B.I, police to return the documents, has virtually, accepted the plea of the respondent, who is the wife of the accused, stating that those documents relating to her properties.
27. Furthermore, it is noticed that the trial Court has gone to the extent of directing the C.B.I. to take xerox copy of all those documents and return the originals to the respondent and that those true xerox copies could be marked as exhibits even during the course of trial.
28. I am at a loss to understand as to how this could be done, especially when these original documents are very much essential for further investigation by the C.B.I. police whose case is ithat all the properties including the properties [mentioned in the documents in question were illegally acquired by the accused in his name and in the name of his wife and children.
29. As a matter of fact, in the affidavit filed before the trial Court as well as before this Court, the respondent would state that those documents have to be used for running her financial investment office administration and also to get the matured amount for encashment of F.D. Rs. and other deposits. It is also mentioned in the affidavit that the deposits and the other properties mentioned in those documents were purchased by her with her own money and the money given by her mother, who gave her as gift.
30. This is virtually the defence plea put forward by the accused through her wife in these applications. On consideration of the said plea, if the applications under Section 457, Cr.P.C. are allowed by deciding that the respondent/wife of the accused is entitled to the same, it would amount to accepting the plea of the defence, even during the course of investigation, consequently, there would be a seridus prejudice to the prosecution. The Investigating Agency, as laid down by the Apex Court time and again, must be allowed to have a free hand in the collection of materials on the basis of the original documents already seized, in order to substantiate the charge under Sections 13(2) and 13(l)(e) of the Prevention of Corruption Act.
31. When such the well established proposition, it is not proper on the part of the trial Court to observe that even during the course of trial, the xerox copy of those documents could be marked as exhibits. In the facts and circumstances of the case, I am fully convinced that these documents are very much essential for the C.B.I. for further probe into the matter and if enough materials are collected to establish that these properties were illegally acquired by the accused, then these original documents have to be marked as exhibits before the trial Court during the course of trial. Even before arriving at the proper conclusion by the Investigating Agency, the wife of the accused cannot be allowed to get the documents returned to use, spend or alienate the properties alleged to have been illegally acquired by the accused, the husband of the respondent herein.
32. Under these circumstances, I am of the view that the impugned order suffers from illegality and as such, the same is set aside.
33. In the result, these Revisions are allowed. Consequently, Crl. M.P. Nos. 2393/98 and 2482/ 98 are closed.