1. This revision is filed by the Bharat Heavy Electricals Limited, Ramachandrapuram, to set aside the order passed by the Munsif-Magistrate, Sangareddy, in Crl.M.P. No. 156 of 1981.
2. The second respondent, Messrs South Eastern Roadways, Hyderabad, were entrusted to transport 28 (7 + 5 + 11 + 5) seamless steel pipers, 2 cooling coils, 5 laddles and 4 cable drums and deliver them to the petitioner's Company at Ramachandrapuram. The case of the petitioner is that, instead of delivering them, the second respondent retained them with him with an ulterior motive, and thus committed criminal breach of trust. Consequently, report was given at the police station, Ramachandrapuram, and a case was registered under Section 407 of the Indian Penal Code, against the 2nd respondent.
3. The petitioner submits that the abovementioned items are necessary for use in the day-to-day manufacture of the company. The company cannot get these materials in the open market in this country. Many of them are imported and scarce items. They are immediately required for manufacture of components for the Thermal Power Stations. Due to heavy demand of power and expansion of power stations by the Central and various State Government, these components are required to improve the power generation in the country. It is further submitted that the absence of raw materials will result in retrenchment of the employees, and will cause heavy loss to the public sector industry amounting to national loss. It is stated that there is no dispute about the ownership and the entrustment of the above materials to the 2nd respondent and he is withholding them on the ground that he had to get some excess amount, more than the agreed amount. It is also submitted that this property is not required for identification. Therefore, the petition was filed by the petitioner to permit them to utilise the above material even before the trial of the case.
4. The 2nd respondent filed a counter stating that as per the agreement the petitioner had to deposit certain amounts in the Bank and it was only after depositing the amounts, the petitioner could taken the delivery and he had failed to deposit the amount in the Bank. It was further stated that the charge-sheet is not filed so far and under Section 451 Cr.P.C., only interim custody could be given and the goods could not be finally disposed of.
5. The learned Magistrate in his order dated 3rd April, 1981 held that if the property was kept unutilised during the pendency of the trial it would definitely result in loss to the Company as well as to the Nation. He also held that he was satisfied that the property is subject to natural decay which would ultimately result in loss to the company as well as to the Nation. But he found that under Section 451 Cr.P.C., he could dispose of the proper after recording some evidence during the pendency of the trial and since in this case no charge-sheet has been filed, the petition is premature. In the result he closed the petition without pronouncing any final ode with an observation that the petitioner should wait till the stage of recording of evidence is reached.
6. In this revision it is submitted by the learned counsel of the petitioner that it is a scarce material which has been imported by the petitioner-company for utilising in power generation and if it is not immediately used, besides going rusty, it will also cause great loss to the company as well as to the Nation, for, the petitioner-company manufactures power generation sets in the country. It was further submitted that there is no dispute with regard to the ownership or identity of property, that the second respondent is only claiming a lien for his transportation charges, that the Magistrate him self found that if the properly is kept unutilised it would definitely cause loss to the company as well as to the Nation, and that under Section 457 Cr.P.C., the Magistrate should have delivered the goods to the petitioner-company for utilisation in their manufacture. It was also submitted that in any event this High Court in its inherent powers under Section 482 Cr.P.C., could give could a direction in order to secure the ends of justice.
7. The learned counsel for the 2nd respondent submitted that it is only an interlocutory order and no revision lies to this Court. He also submitted that under Section 451, Cr.P.C., only interim custody could be given and, in fact, it was given on the petitioner executing a bond and orders for final disposal could not be passed under Section 451, Cr.P.C.
8. The undisputed facts are that the goods in question are scarce material and it had been imported by the petitioner-company, a Central Government undertaking, for using in power generation. If those materials are not immediately used, they are likely to go rusty besides affecting power generation in the country, and thus causing great loss to the petitioner-company as well as the Nation. The ownership of the goods or the identity of the goods is not in dispute. The petitioner-company is the owner of the goods. The 2nd respondent does not claim their ownership much less dispute their identity. Only he claims a lien over the goods for his transportation charges. It is not also disputed that the custody of the goods had been given to the petitioner-company and they have taken delivery on executing a bond for a sum of Rs. 1,47,000/-. According to the counsel for the petitioner the bond was given for about Rs. 4,00,000/-.
9. The only question for consideration in this revision petition is whether the petitioner-company could be permitted to utilise the goods in their manufacturing process without waiting till the case is over. It cannot be disputed that normally it takes a long time. Herein is an extraordinary situation. The goods have to be used immediately by the petitioner-company. The charge-sheet is not so far filed. It is true that under Section 451, Cr.P.C., 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 pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Under Section 457, Cr.P.C., whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of the Code, and such property is not produced before a Criminal Court during an enquiry 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, on such conditions if any as he thinks fit.
10. In Sk. Muktear v. State, 1954 Cri LJ 961 it has been held by the Calcutta High Court that, where there has been no inquiry or trial in a Criminal Court, the proper section to apply will be Section 523 of the old Code, whichever may be the Act under which the offence might have been committed and whatever happens in connection with seizure of property by the police during investigation without any inquiry or trial by the Magistrate.
11. In State of Mysore v. Laxmi Trading Co. (1963) 1 Cri LJ 269 it was held by the Mysore High Court that, a Magistrate has no jurisdiction under Section 516-A of the old Code to pass any order regarding disposal of property, which has been detained in custody pending investigation before commencement of the enquiry or trial.
12. In A. Kamaluddin v. Abdul Salim, 1972 Cri LJ 1160 Kerala High Court held that, when police people seize property during investigation and the enquiry or trial has not commenced, order for disposal of property should be made under Section 523(1) and not under Section 516-A of the old Code.
13. In Crl.R.C. No. 687 of 1975 (Andh Pra). Muktadar, J., held that Section 451, Cr.P.C. applies only when an enquiry or trial is pending in the Court and Section 457, Cr.P.C. applies to a case where no inquiry or trial is pending.
14. In view of these decisions I hold that since in this case the charge-sheet has not been so far filed, there is no inquiry or trial pending and, therefore, order could not be passed under Section 451 Cr.P.C. They could be passed only under Section 457, Cr.P.C. Under Section 457(1) Cr.P.C. when the seizure of property by any police officer is reported to a Magistrate and such property is not produced before a Criminal Court during an enquiry 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. Therefore, in the case on hand, I am of the opinion that the Magistrate could pass an order directing the delivery of the property to the petitioner-company under Section 457(1), Cr.P.C. Even if I am wrong, I could still direct the delivery of the property to the petitioner-company under Section 482 Criminal P.C. in order to secure the ends of justice.
15. I do not agree with the learned counsel for the respondent that it is an interlocutory order and no revision lies under Section 397(2) Cr.P.C. The order in question substantially affects the rights of the parties. If so, it cannot be considered to be an interlocutory order. (See Amar Nath v. State of Haryana, : 1977CriLJ1891 ).
16. In the result, I allow the Crl.M.P. No. 156/1981 filed by the petitioner in the lower court. I hold that the petitioner can utilise the goods seized, in their manufacturing process. According, the order of the lower court is set aside and this revision is allowed.
17. Revision allowed.