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Vasu Vs. T. Unnikrishnan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1983CriLJ1194
AppellantVasu
RespondentT. Unnikrishnan and anr.
Cases Referred(All) and S.S. Khanderai v. State of Maharashtra
Excerpt:
- - the revision petitioner as well as the first respondent filed claim petitions under section 451 of the criminal p......order which could not be challenged in revision in the light of section 397(2) of the code. learned counsel placed reliance on the decisions in pathu v state of kerala (1975 ker lt 696). nathu lal v. state (1976 cri lj 358) (all) and s.s. khanderai v. state of maharashtra (1979 cri lj 1457). learned counsel for the first respondent has placed reliance on a decision of the gauhati high court noted in 1980 cri lj noc 6.3. in pathu's case, this court had to deal with the question whether a revision lies against an order of disposal under section 451 of the code at the instance of a stranger. in such a case, the order under section 451 of the code assumes characteristics of a final order and therefore it could not be treated as an interlocutory order and revision will lie. in.....
Judgment:
ORDER

U.L. Bhat, J.

1. Revision petitioner is the complainant in C. C. 249 of 1982 on the file of the Chief Judicial Magistrate, Palghat. The complaint alleged offences under Sections 406, 420, 189, 193, 209 and 211 IPC against the first respondent herein and another person with reference to a tractor of which the registration certificate stands in the name of the first respondent. The case of the complainant was that he purchased the tractor from the first respondent. Subsequent to the complaint, a search warrant was issued and the tractor was searched and produced before the Court. The revision petitioner as well as the first respondent filed claim petitions under Section 451 of the Criminal P.C. The learned Magistrate directed the tractor to be released to the custody of the complainant-revision petitioner on execution of bond and subject to certain conditions. This order was challenged by the first respondent before the Sessions Court Palghat in R. P. No. 42 of 1082. The learned Sessions Judge set aside the order and directed the return of the tractor to the first respondent on bond. It is this order which is challenged in the present revision petition.

2. learned Counsel for the revision petitioner contends that the order of the learned Magistrate being one under Section 451 of the Code is an interlocutory order which could not be challenged in revision in the light of Section 397(2) of the Code. learned Counsel placed reliance on the decisions in Pathu v State of Kerala (1975 Ker LT 696). Nathu Lal v. State (1976 Cri LJ 358) (All) and S.S. Khanderai v. State of Maharashtra (1979 Cri LJ 1457). learned Counsel for the first respondent has placed reliance on a decision of the Gauhati High Court noted in 1980 Cri LJ NOC 6.

3. In Pathu's case, this court had to deal with the question whether a revision lies against an order of disposal under Section 451 of the Code at the instance of a stranger. In such a case, the order under Section 451 of the Code assumes characteristics of a final order and therefore it could not be treated as an interlocutory order and revision will lie. In the course of the discussion, this court observed that if the order passed is on a petition under Section 451 of the Code moved by a party to the proceeding it will have to be treated as an interlocutory order and the same could not be challenged in revision.

4. In S.S. Khanderai's case (1979 Cri LJ 1457) (Bom), the court passed an order under Section 451 of the Code and then modified it by a different order which was challenged in revision before the Court of Session and the revisional court interfered with the order. The High Court was moved to interfere with this order under Section 482 of the Code. The court held that it was not a fit case for interference under Section 482 of the Code. The Division Bench of the Bombay High Court considered the decisions of several courts in regard to the distinction between an interlocutory order and a final order. In the case of a final order, the Magistrate would not have jurisdiction to modify it or pass any further order while in the case of an interlocutory order, he could pass subsequent orders. It was stated that after a court passes an order of disposal under Section 451, it cannot be said to be devoid of jurisdiction or power to modify that order and pass a fresh disposal order to meet any exigencies of situations or otherwise. In this view, the Bombay High Court held that the Magistrate had power to modify the order once passed under Section 451' of the Code.

5. In Nathu Lal's case (1976 Cri LJ 358) (All), a revision was filed challenging an order passed by the criminal court under Section 451 of the Code. On the construction of 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.

6. In 1980 Cri LJ NOC 6, the Gauhati High Court observed that the order of disposal and custody is final between the contending parties and therefore revision lies. The view is not supported by any reasoning.

7. On the facts of the present case, it is unnecessary for me to consider whether with reference to a stranger to the proceedings, an order of disposal could be treated as a final order as held in Pathu's case (1975 Ker LT 696). But in that decision, this Court has stated that at least between the parties to the proceedings, the disposal order is only interlocutory. This conclusion could be supported by the reasoning discussed in the Bombay case. If a Magistrate once passes 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 & 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. I therefore hold that the revision petition was not competent against the order passed under Section 451 of the Code. Therefore, the learned Sessions Judge had no jurisdiction to interfere with the order passed by the Magistrate. The impugned order in revision is set aside. The revision petition is allowed in this manner without going into the merits of the parties' claims.

8. Issue carbon copies to parties on usual terms.


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