Calcutta High Court
Shahud-Ul-Haque vs The State Of West Bengal on 18 March, 1993
Equivalent citations: (1993)2CALLT379(HC)
JUDGMENT Amal Kanti Bhattacharji, J.
1. In this revisional petition the petitioner has challenged an order of the 5th Judicial Magistrate, Alipore rejecting his application for giving custody of certain seized articles. The petitioner's case is that he is a monthly tenant in respect of one flat on the 1st floor and one garage on the ground floor at premises No. 10, Sunny Park, P.S. Ballygunge, Calcutta, under Opposite Party No. 3. The petitioner claims to be in possession of the said tenanted premises on and from the 16th October, 1991. It is alleged that the men and agents of M/s. Superintendent Co. of India Pvt. Ltd. (of which opposite party No. 2 is a Director) (hereinafter referred to as the company) are harassing and humilating the petitioner and his family members and trying to take forcible possession of his tenanted premises. As a result various criminal and civil proceedings were started against each other. On the 17th January, 1992, the petitioner filed a suit against the opposite party No. 3 inter alia for declaration and injunction and for other reliefs and in that suit the petitioner filed an application under Order 39, Rules (1) and (2) for an order of injunction restraining the defendants and their men and agents from interfering with his possession of the tenanted premises. The learned 2nd Court of Alipore in the said suit passed an order directing the parties to maintain the status quo. It has been alleged by the petitioner that the men and agents of the company are wrongfully and illegally pressurising him to vacate the premises and to hand over possession of the same to the company. On the 15th February, 1992, opposite party No. 2 filed a petition of complaint before the Sub-Divisional Judicial Magistrate, Alipore, being Complaint Case No. C-373/1992 against the petitioner making allegations of offences punishable Under Sections 448/341/380/365/506/109 I.P.C. The Magistrate took cognizance of the case and issued process against the petitioner and others. On the 7th March, 1992, opposite party No. 2 obtained an order for search warrant and seizure in the aforesaid complaint case. As a result of the said search four tube lights and two cots were seized which were claimed by the opposite party No. 2 to be the property of the complainant. The petitioner filed an application Under Section 451 Cr.P.C. before the Magistrate for return of the seized articles. Both parties claimed ownership of the articles and the Magistrate after hearing both the parties rejected the prayer of the petitioner and passed an order giving the custody of the articles to he complainant opposite party. Being aggrieved by the said order the petitioner has filed this revision petition for setting aside the said order and for handing over the articles to him on proper security.
2. The opposite party No. 2 contests the revisional application. His contention is that the seized articles belonged to the complainant and that they were rightly seized by the police on the complainant's showing. He also submits that the order passed by the Magistrate giving custody of the seized articles to the complainant is a correct one.
3. Mr. Pradip Ghosh speaking for the revision petitioner1 submits that the reasoning adopted by the Learned Magistrate for preferring the custody of the seized articles in favour of the complainant-O.P. is neither just not proper. In this case both the petitioner and the complainant prayed for custody of the seized articles-the petitioner on 17.3.92 and the O.P. on 3.4.92. The complainant's petition was supported by an affidavit but the petitioner's petition was not so supported. The Magistrate held that the petitioner had neither supported his petition by an affidavit nor filed any counter-affidavit against the complainant's petition dated 3.4.92 and that as such the complainant had an edge over the claim of the petitioner. This reasoning was applied and resorted to after both the parties had made abortive claims of ownership to the seized articles by producing xerox copies of cash memos from each side. The Magistrate refused to entertain xerox copies of receipts produced by both the parties but held the complainant to be a better claimant of custody on the articles on the ground mentioned above.
4. Mr. Ghosh submits that the ground relief on by the Magistrate for preferring the claim of custody in favour of the O.P. is an absurd one. According to him when both the parties had failed to adduce prima facie evidence of ownership, the evidence by an affidavit could not have any better value. In any case the petitioner having not been given any opportunity to file any counter affidavit and the Magistrate having not expressed his desire to decide the matter on the basis of affidavits the petitioner did not consider it necessary to support his petition by any affidavit.
5. In this connection Mr. Ghosh also submits that the seized articles cannot be said to tally with the description given in the list for search. According to him among hundred items given in the list only two items were seized and they too were identified in a most nonchalant manner. These items were described in the list as "tube set" (item No. 27) and "cot, bedding, utensils for senior staff" (item No. 95). The articles seized were a few fluorescent lights and two folding cots which according to Mr. Ghosh could be described in more identifiable terms. Whatever might be the merits by the respective claims it must be admitted that the items in question were too common for general identification.
6. The prayer for custody was made in this case Under Section 451 Cr.P.C. According to this section when any property is produced before any criminal court during any enquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property. Evidently order under this section does not determine the entitlement of any of the parties to any seized article. The Magistrate only provides for proper custody of the article having regard to the nature of the property, the person from whom it is seized, the nature of its identifiability, the possibility of its user, acceptibility of claim of ownership etc. The article may be seized from the possession of an admitted owner, as for example, a motor car or a bus or it may be seized from the possession of a non-owner on identification by the true owner. In all such cases the acceptable owner should have the first chance of custody subject to conditions to be fixed by the Magistrate.
7. Mr. Arun Prakash Chatterjee on behalf of the opposite party raises a preliminary objection regarding the maintainability of this revision petition as the impugned order according to him is an 'interlocutory order' revision of which is expressly barred under Sub-section (2) of Section 397 Cr.P.C. As the instant petition is one Under Section 401/482 Cr.P.C. both the parties have endeavoured to show by producing a plethors of decisions if an order Under Section 451 is an interlocutory order and if so, it is revisable Under Section 401 and quashable Under Section 482.
8. Mr. Chatterjee cites 1986 Cr LJ 263 (Joshy v. The State) in which the Kerala High Court held that normally an order passed Under Section 451 as distinguished from one passed Under Section 452 Cr PC is an interlocutory order to which the bar Under Section 397(2) applies. The court held that a proceeding under the said section is actually not a disposal of property but only an arrangement for proper custody pending conclusion or enquiry or trial. As it does not settle the title or even right to possession and as rejection of claim of custody Under Section 451 does not preclude a party from making a claim Under Section 452, it is clear that it is an interlocutory order. It was, however, held in the aforesaid case that the seizure of the property in question being made without any enquiry or trial pending, it was actually a case falling Under Section 457 not Under Section 451. In 1983 Cr LJ 1584 (Jackob v. Jay Bharat Credit and Investment Company), another case decided by the Kerala High Court, it was held in connection with an order passed Under Section 451 that such an order being an interlocutory order was not revisable, but nevertheless it did not affect the inherent power of the High Court to deal with such a case. As regards the interlocutory nature of an order Under Section 451, a contrary view was expressed by the Agartala Bench of the Gouhati High Court in 1980 Cr LJ NOC 6 (Radha Prasad Gowaia v. Mantr Mia). It was held in this case that an order Under Section 451 Cr PC could not be contemplated as an interlocutory order Under Section 397(3). Such an order was final between the contesting parties until final disposal of the trial and hence it was revisable. No detailed reasoning has, however, been given in this reported NOC decision.
9. As regards the point as to whether such an order is actually an interlocutory order there are several decisions of the Supreme Court. In Madhu Limaye v. The State of Maharashtra the Supreme Court observed as follows in paragraph 12 of the judgment-
Ordinarily and generally the expression interlocutory order has been understood and taken to mean as a converse of the term final order. In volume 22 of the 3rd edition of Halsbury's Laws of England at page 742, however, it has been stated in para 1606-
"......a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required". In para 1607 it is said :
"In general a judgment or order which determines the principal matter in question is termed "final'1."
In para 1608 at pages 744 and 745 we find the words :
"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 of right already given in the final judgment are to be worked out, is termed "interlocutory'1. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals".
10. The following observations of the Supreme Court in Paragraph 13 of the same case arc also illuminating-
"It has been pointed out repeatedly, vide for example, The River Wear Commissioners v. William Adenson (1876-77) 2 AC 743 and R.M.D. Chamar Baugwalla v. Union of India that although the words occurring in a particular statute are plain and ambiguous they have to be entertained in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. 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, AIR 1949 FC (supra), but, yet it may not be an interlocutory order-pure or simple. Sometimes 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 clients of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning Section 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which we fall in between the two. The first two kinds are well known and can be culled out from many decided cases. 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. The principle enuntiated in the aforesaid case was quoted with approval in Raj Kapoor and Ors. v. Delhi Administration and Ors., where in defining the extent of the High Court's power to exercise the inherent power Under Section 482 in the context of the bar Under Section 397(2) of the Criminal Procedure Code his Lordship V. R. Krishna Iyer observed as follows :
"In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extra ordinary situation excites the court's jurisdiction. The limitation is self restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as Untwalia, J. has pointed out as for example. Where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complaints of harassment through the court's process. Can we state that in this third category by inherent power can be exercised ? In the words of Untwalia, J :
'The answer is obvious that the bar will not operate to prevent the abuse of the process of the court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers the present case undoubtedly falls for exercise of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.'".
12. From the above decisions of the Supreme Court it would be seen that an order Under Section 451 Cr.P.C. is an interlocutory order although its nature may vary in different cases. So far as the intent of Section 451 is concerned, there is no doubt that it does not decide the rights of the parties conclusively, but nevertheless its nature is something more than mere interlocutory order in certain cases. It may affect the rights which may berevisable in certain cases, particularly when a true owner is deprived of the possession of the property by an order Under Section 451. It would, however, be evident from the discussions elaborately quoted in the aforesaid two Supreme Court cases that even though such orders are generally accepted as interlocutory ones attracting the provisions of Section 397(2), the jurisdiction of the High Court in exercise of its inherent power is not curtailed. In other words, the High Court can, in spite of the bar Under Section 397(2), decide the legality of the order Under Section 482. A Calcutta case (N.C. Nagpal v. The State) reported in 1979(1) CHN 198 has also been cited in support of the view that the Court can in exercise of its inherent power to quash a proceeding for ends of justice or to prevent abuse of the process of the Court.
13. This brings us to the point which has been very forcefully advanced by Mr. Chatterjee, whether it is a fit case for exercising its inherent power by the High Court Under Section 482. The said Section provides that nothing in the Criminal Procedure Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Quoting these provisions of the Section Mr. Chatterjee argues that none of the circumstances mentioned in the Section is present in this case so as to induce the High Court to exercise its power to quash the order of the Magistrate here. It is argued that the Magistrate has given the intermediate custody of the seized articles in favour of one of the parties against adequate bonds and that such an order is perfectly legal. It is also argued that in any case there is no abuse of the process of any Court to justify the revision of, or otherwise setting aside the order. So it is prayed by Mr. Chatterjee that the petitioner's prayer for revision or the quashing the order should not be considered by the High Court.
14. Mr. Ghosh on the other hand submits that the Magistrate has on the one hand refused to entertain the claim of ownership of the seized articles by any of the parties, but on the other hand has found one of them to have a better claim of retaining possession. On a perusal of the impugned order it is clear that the reasoning given by the Magistrate for preferring the custody with the O.P. is not a correct one. If he has been satisfied that the articles seized actually belonged to the complainant O.P., he had the right to keep them in his custody. But if he is not satisfied that the articles in question really belonged to the O.P. he ought not to have passed the order on a wrong reasoning. To that extent the order cannot be endorsed. But the matter has another side also. The articles seized were of very common nature and the Magistrate has not given any finding that the O.P. had a better claim of title on them. When he was not in a position to decide on the spot as to who was the actual owner of the goods before their seizure, he could have kept them in the custody of any one including a third party. There is much force in the argument of Mr. Ghosh that in the absence of any decisive factor the property should have normally been left in the custody of the person from whom they were seized. Considering, however, the nature of the goods seized and the fact that neither of the parties could produce any prima facie document to show that he had right to keep the goods in his custody in preference to the other and also in consideration of the fact that the custody has been given to the O.P. against adequate security I do not think that the quashing of the order is called for here. In coming to this decision I make it clear that by giving custody of the seized articles to the O.P. no question of title has been decided and no stigma will attach to the petitioner for seizure of the articles from his custody. While disposing of the criminal case the Magistrate will naturally proceed with the matter on the basis of evidence adduced in the case and with an open mind so that the fact of disposal of the petition Under Section 451 will have no effect on the merits of the case.
15. For all these reasons I am not inclined to quash the impugned order. The revision petition is accordingly rejected and the interim stay order already passed is vacated.
Let a xerox copy of this order be handed over to the learned Advocate to the parties.