Delhi High Court
Anisa Begum vs Masoom Ali And Ors. on 8 November, 1985
Equivalent citations: 1986CRILJ503, 30(1986)DLT107, 1986(10)DRJ224
JUDGMENT J.D. Jain, J.
(1) The facts relevant to the decision of this petition succinctly are that Zamir Ahmed, deceased husband of the petitioner, was a motor mechanic and was having his place of work near Inter-State Bus Terminal, Delhi. He used to repair shock absorbers and do other auto jobs in the repairs of motor vehicles etc. and he had kept his goods including shock absorbers, tools and implements in a box at the place of his work. He died on 7th March 1983 under mysterious circumstances as bodies of both Zamir Ahmed and his son Anis Ahmed aged about 19 years were found floating in river Yamuna on 20th December 1983. The petitioner lodged a report with the Assistant Commissioner of Police, Sadar Circle, Delhi that the respondent, who is younger brother of her deceased husband, had stolen all the articles viz. shock absorbers, tools and implements etc. of her deceased husband by removing the box containing the same from the place of work of the deceased to his own house at 1074. First Floor. Kishanganj (Teliwara). A case was registered being Fir No. 745/83, Police Station Kashmere Gate, under Section 379 Indian Penal Code (hereinafter referred to IPC') against the respondent on the basis of the said report and search of the aforesaid house of the respondent was effected on 22nd December 1983. As a result of the house search of the respondent, 170 big sized shock absorbers, 30 small sized shock absorbers, some tools and implements and the box containing the goods etc. were recovered and seized by the police. On completion of the investigation the police filed a charge-sheet against the respondent on 9th June 1984.
(2) The respondent moved an application dated 26th September 1984 for return of the seized goods to him contending that he was rightful owner thereof and the same had no connection whatsoever with the alleged theft. He also pointed out that there was likelihood of the said goods being damaged in the event of the trial protracting over a long period and he would suffer irreparable loss on that account. The said request was opposed by the complainant-petitioner, who asserted that the goods in question belonged to her deceased husband Zamir Ahmed and had been stolen by the respondent from the place of his work taking advantage of her helplessness.
(3) The learned Magistrate vide order dated 28th November 1984 rejected the application of the respondent and directed that the articles be released to the complainant-Smt. Anisa Begum on her furnishing Superdaginama in the sum of Rs. 5,000.00 . Feeling aggrieved the respondent went in revision in the Court of Session. It was heard by an Additional Sessions Judge who vide impugned order dated 8th February 1985 set aside the aforesaid order of the Metropolitan Magistrate and directed that the seized articles be returned to the respondent-Masoom Ali. Hence, this revision petition by the complainant-petitioner against the aforesaid order of the Additional Sessions Judge.
(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 complainant-petitioner 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 criminal proceedings the legislature has now inserted Sub-section (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 cither (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 : "..AJUDGMENtor 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 order eventually made."
(6) The last part of the aforesaid statement rests on the observations of Lord Denning M.R in Salter box & Co. v.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 petitioner-Smt. 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. The purpose of Sub-section (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 v. State of Gujarat, : "Aninterlocutory 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 and others v. State of Haryana and others, , the Supreme Court was dealing with an order summoning the appellants in a 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 v. State of Maharashtra, . 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 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 order-pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction. We think that the bar in Sub-section (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 : "WEmay, 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 accused-petitioner 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 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 v. 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 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 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 lin accused, produced some documents to show that he had purchased such uke 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 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 cose 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."
(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 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 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 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 puties. If so, it ca'i'i'Jt be co:iside:ej 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 : "TOme, 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 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 descretion 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 this-predicament, 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 Sub-section (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 extra-ordinary in its very 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.