Patna High Court
Ram Kishore Thakur vs Shyam Bihari Giri And Anr. on 7 January, 1991
Equivalent citations: 1991(1)BLJR483
JUDGMENT L.P.N. Shahdeo, J.
1. These two criminal miscellaneous applications have been taken up together as they arise out of the same matter in connection with the same truck which is involved in the instant case.
2. Criminal Misceallaneous Nos. 2661/89(R), is directed against the order passed in Cr. Revision No. 13-C/17 of 1989 by the District and Sessions Judge, Jamshedpur, on 7.4.1989, by which he has allowed the revision ordering for release of the truck in question, WMK 3924, in favour of the opposite-party No. 1.
3. Criminal Miscellaneous No. 2659/89 (R), is directed against the order of the District and Sessions Judge, Jamshedpur dated 21.7.1989, by which he has clarified his earlier order passed in Criminal Revision No. 13-C/17 of 1989.
4. It appears that the Additional C.J.M., Jamshedpur by his order dated 12.1.1989, had ordered the release of the truck WMK 3921, in favour of the petitioner, Ram Kishore Thakur. It appears that opposite-party No. 1, Shyam Bihari Giti, had instituted a case Sakchi P. Section case No. 216/88, on 25.11.1988 under Sections 441, 323, 596 and 279, I.P.C. alleging that the accused of that case who is the petitioner in these cases, namely Ram Kishore Thakur, forcibly took away that truck on 5.11.1988 ultimately that truck seized by the police.
5. It appears that the petitioner and the opposite-party No. 1, both had filed a petition for release of the truck before the Additional C.J.M., Jamshedpur. After hearing the parties, the Additional C.J.M., passed the impugned order. It appears that thereafter, police submitted foal form, which was accepted by the Court on 10.11.1989, and the case was ultimately dismissed. It appears that the trial court had ordered for release of the truck in favour of the petitioner, and against that order of the trial court, the opposite-party, Shyam Bihari Giri, filed a criminal revision before the Sessions Judge, being Criminal Revision No. 13-C/17 of 1989, which was allowed and the order of the A.C.J.M. was set aside on 7.4.1989, by the Sessions Judge, who ordered the truck to be released in favour of the opposite-party No. 1. It appears that according to the trial court, the order was not clear and, therefore, he wanted clarification of the same from the Sessions Judge. The matter was registered as Cr. Misc. No. 9-C/89 and the order was clarified by the Sessions Judge with regard to the release of the truck, in favour of the opposite-party, Shyam Bihari Giri.
6. Mr. P.S. Dayal, learned Counsel appearing on behalf of the petitioner has submitted that the order passed in Cr. Misc. No. 2661/89 (R), is interlocutory in nature and no revision lies against that as the order passed under Section 451, Cr.P.C. is not revisable orders and, therefore, the Sessions Judge had no jurisdiction or authority to interfere with the order passed by the trial court, exercising jurisdiction in revision. In Cr. Misc. No. 2659/89 (R), it was submitted that the Court had no inherent power to pass any such order or making any clarification and, therefore, those two orders passed by the revisional court are wholly illegal and without jurisdiction.
7. On the other hand. Mr. T.K Bajaj. learned Counsel opposite-party No. 1 has submitted that the order passed by the Sessions Judge, releasing the track in favour of the opposite-party No. 1 is not an interlocutory order and, therefore, there is no question of committing any error of jurisdiction by the Sessions Judge. It was submitted that the order-passed by the Sessions Judge in Cr. Misc. No. 9-C/R9 was necessitated, in order to make necessary clarification, as desired by the trial court.
8. It is admitted position that under Section 451 Cr.P.C. the Court is empowered to pass a suitable order for proper custody of the property, Pending conclusion of the trial. Under Section 452. Cr.P.C. the Court has also been empowered to pass necessary orders, after conclusion of the enquiry or trial as the court may think fit. for disposal of the property. It pagers that under Section 454. any person aggrieved by an order made by the Court under Section 452 or 453. Cr.P.C. may appeal against it to the Court to which appears ordinarily lie from the convictions by the former Court. In this case, the A.C.I.M. had already passed the impugned order and there after final form was filed by the police which has subsequent been brought on record by the supplementary affidavit. Therefore, the Court had power to pass necessary orders for proper custody of the property either before trial or after conclusion of the trial. It is the admitted position in this case the petitioner had also participated in Criminal Revison No. 13-C/17 of 1989 and allowed the Court to pass such an order and did nor take me question of jurisdiction at that stage but when the order want against him, he raised a grievance that the order was interlocutory in nature and no revision was maintainable, before the Sessions Judge. The petitioner therefore, cannot be allowed to blow hot and cold at the same time and he cannot make any grievance with regard to the jurisdiction of the Sessions Judge, as submitted by Mr. Dayal.
9. The order passed by the trial court for releas of the truck in question in favour of Shyam Bihari Giri, during or before the conclusion of the tm cannot be said to be interlocutory in nature, as it has decided the right of a party at that stage. Admittedly, the revision was preferred, against the order passed under Section 451, Cr.P.C. and at that time the trial had not concluded and final form was not submitted. This kind of order affecting the fundamental right of a person to hold a property cannot be termed to be interlocutory in nature It was a final order between the contending parties to enjoy and retain the property, until the trial is over This type of order, therefore, must be taken to be a final order as it has finally determined the right of one party to hold the custody of that property until the trial is concluded. The same issue is required to be determined by a Magistrate and, therefore, there must be some control with regard to the order passed by a Magistrate in relation to a property which is produced before the Court or which in its custody. When such a power is entrusted to he Magnate for disposal of the property until final disposal of the trial, there must be a control to check its wide discretionary power. There may be cases in which property valued at several lacs or vehicle may be released by the Magisrate Pending trial and, therefore, that type of order must be tested in exercise of revisional jurisdiction. In that view of the matter, the order for interim release of the property by the Magistrate must be held to be final order and not interlocutory order and, therefore, the revision was maintainable before the Sessions Judge, and the Sessions Judge has not committed any illegality, nor there was any lack of jurisdiction in exercise of that power of revision.
10. In this connection Mr. P.S. Dayal, learned Counsel appearing on behalf of the petitioner has relied upon the case of Vasu v. T. Unnikrishnan and Anr. reported in 1983 Cr. LJ 1194 (Kerala High Court) in which it was found that the order passed under Section 451, Cr.P.C. for disposal and custody of the disputed property is an interlocutory one and cannot be challenged by way of revision under Section 397 of the Code. It was said that since at that time the trial had not concluded, therefore, that order must be termed as interlocutory in nature, which the Magistrate can revise at any time. Therefore, she order passed under Section 451 of the Code is not a final order. But this ruling did not take note of the far-reaching consequences that even the interim order passed by the learned Magistrate deciding to hold the property during the pendency of the trial, in some cases, may last for years together and even for 10 years and in that situation, a person against whose interest the property is allowed to be enjoyed and retained by the other contender, cannot be prevented from filing a revision, otherwise it will affect the fundamental right of a person to hold the property. The person to whom the property or vehicle is released may not have interest. The value and utility of the property shall deteriorate by the time actual owner ultimately get back the property.
11. In this connection, Mr. T.R. Bajaj, learned Counsel appearing on behalf of the opposite-party No. 1 had relied upon the case of Praveen Kumar v. State of Himachal Pradesh and Anr. reported in 1989 Cr LJ 2537, in which it was held that the release of a property pending trial is not an interlocutory order, but a final order between the parties at that stage, and revision against the same before the Sessions Judge is competent, ft was further pointed out that such an order is filial between the parties and the Magistrate cannot till the termination of the proceeding arbitrarily or without proper justification change the same during the course of the proceeding. ft was further held that the contention that such an order becomes final on the termination of the proceeding cannot be accepted Because even that order is subject to the determination by a, Civil Court. Therefore, this kind of an order is final between the parties as it has only decided the entitlement to the property in question at that stage. Therefore, such an order is necessarily subject to revision and a revision against the same is maintainable before the Court of Sessions. The reasons given by the Himachal Pradesh High Court, i.e. the case of Parveen Kumar (supra), are more appropriate and, therefore, I agree with that ruling for the reasons stated above, but I am in respectful disagreement with the ruling given by the Kerala High Court in the case of Vasu (supra). The Kerala ruling was also discussed in the Himachal Pradesh case and the High Court did not accept the same.
12. To conclude, it must be held that the order passed under Section 451, Cr.P.C. for release of the property in question in favour of one of the contending persons is a final order against which a revision, is maintainable before the Sessions Court. In this view of the matter, the order paused by the trial court, was revisable and the revision preferred before the District and Sessions Judge cannot be said to be incompetent or without jurisdiction.
13. It is true that a court of Magistrate or Sessions Court has no inherent power as vested in the High Court, under Section 482, Cr.P.C. but in this case, the Sessions Judge in Cr. Misc. No. 9-C of 1989, has not exercised any inherent power, but only has passed an order as desired by the trial court, making necessary clarification in his earlier order. When an order is passed, if certain matter remains to be clarified, the Court is competent to clarify that matter and in doing so, it cannot be said that he has exercised the inherent power which is not vested m it. The clarification was done only to give effect to the order or the import on the same, it is not a new order, but flows from the original order itself. Therefore the order passed by the Sessions Judge making necessary clarification with regard to the release of the truck in question cannot be said to be illegal or without jurisdiction, in the facts and circumstances of the instant case.
14. In the result, for the reasons stated aboved, I do not find any merit in these two applications, which are, accordingly dismissed.
However, it is made clear that since the final form has been accepted by the Court, the Magistrate is now required to decide the question of possession and entitlement to the truck in question, after conclusion of the case, which should he done expeditionsly.