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Yadav Agencies Pvt. Ltd. Vs. Philomina and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1985CriLJ1798
AppellantYadav Agencies Pvt. Ltd.
RespondentPhilomina and anr.
Cases ReferredPathu v. State of Kerala
Excerpt:
- - it is true that in case of rival claims, even though preservation and upkeep are the main considerations, other factors just as right to possession, who is best entitled to possession etc......court allowed crl. m. p. 2153 of 1975 and dismissed crl. m. p. 2151 of 1975. the second respondent filed revision before the sessions judge. the sessions judge allowed the revision and remanded crl. m. p. 2151 of 1975 for disposal after taking evidence. janaki amma, j. was considering the revision petition against the order of remand,7. in that case the second respondent was not interested in the case. she was an independent party claiming independent right over the cow and calves. according to her, the cow and calves were not those claimed by the petitioner in that case and ordered to be seized, but belonging to her independently. it was under such circumstances that the court held that the magistrate ought not to have entrusted custody to the petitioner under section 451 without.....
Judgment:
ORDER

S. Padmanabhan, J.

1. An order passed under Section 451 of the Code of Criminal Procedure, hereinafter referred to as 'the Code', as distinguished from one passed under Section 452 of the Code, is undoubtedly an interlocutory order. It is actually not a disposal of property, but only an interim arrangement for proper custody I pending conclusion of trial or enquiry. Disposal | of property by destruction, confiscation or delivery to any person claiming entitled to possession or otherwise arises only at the conclusion of trial. Sale or otherwise disposing of property pending trial under Section 451 of the Code will arise only if it is subject to speedy or natural decay or if otherwise, the Court thinks it expedient to do so and that too, if necessary, after recording such evidence required. Normally, though not in all cases, preservation of property pending trial is necessary because it may be required for the purpose of evidence, identification or otherwise during trial. An order under Section 451 of the Code does not settle the title or even right to possession. Refusal of claims to custody under Section 451 does not preclude the person in an enquiry under Section 452 of the Code. It is only an interim arrangement pending enquiry or trial subject, at any rate, to further orders under Section 452 after conclusion of enquiry or trial, if not earlier pending enquiry or trial itself. It is true that in case of rival claims, even though preservation and upkeep are the main considerations, other factors just as right to possession, who is best entitled to possession etc. may be considerations. Even an enquiry under Section 452 of the Code, though conclusive in connection with the criminal proceeding, strictly it is also not a final disposal as between rival claimants because it is always subject to final decision by a competent civil Court, which, alone could decide the rival claims to title finally. Either under Section 451 or under Section 452 of the Code, there can be instances when the criminal courts may be inclined to refuse disposal of property pending decision by a Civil Court. A person is given custody under Section 451 only as a representative of the Court bound by terms of entrustment to act according to the directions. An order under Section 451 is therefore only an interlocutory order and it is not subject to revision as enjoined by Section 397(2) of the Code.

2. Though an interlocutory order has not been defined in the Code, there is little doubt that it is one pending lis and before final hearing on the merits. It may be one made to achieve some purpose for the progress of-the case. Anyhow it is something other than a final order or judgment subject to modification, reconsideration or fresh disposal at a later stage in the proceedings. If the order disposes of the dispute finally so far as the proceeding is concerned, it is a final order even though passed during the pendency of the proceeding. Meaning given to a final order is the same irrespective of the nature of the proceeding, whether civil or criminal. The test is whether so far as the Court passing the order is concerned, the controversy is finally settled.

3. In this Criminal Revision Petition, the controversial question is whether the impugned order is interlocutory or final. If it is a final order the revision will lie, otherwise not. For solving that question a little bit of facts are necessary. The first respondent is the hirer of a diesel vehicle under hire purchase agreement with Jaya Bharath Credit and Investment Co. Ltd., hereinafter called 'the Company', Petitioner and one Jamal are the agents of the Company. On account of default in payment of instalments, at the instruction of the Company, Jamal seized the vehicle from the first respondent under the terms of the hire purchase agreement. The first respondent filed a criminal complaint against Jamal and got the vehicle seized by an order of the Court. Thereafter both the petitioner and the first respondent filed petitions under Section 451 of the Code. The court ordered custody to be given to the first respondent. The revision is against that order.

4. Even the petitioner was treating the petition filed by him before the Magistrate only as one for interim custody under Section 451 of the Code. This is clear from the averments in the petition itself. But his contention is that the bar in filing a revision petition under Section 397(2) of the Code is available only if the petition for interim custody is filed by a party to the proceeding and not otherwise. I do not think that this position is correct. An order for interim custody need not necessarily be to a party to the proceeding. Even then it is only an interlocutory order because even a third party to whom custody is given is bound by the orders of Court to be passed subsequently.

5. The petitioner claims that he is not a party to the criminal proceeding and he was claiming the property independently under the Company and he is disinterested in the final outcome of the criminal complaint. According to him, the rejection of his petition under Section 451 based on independent title concluded the matter in relation to the complaint so far as he is concerned and hence it must be treated as a final order, which is revisable independent of the bar under Section 397(2) of the Code.

6. In support of this contention, he relied on the decision in Pathu v. State of Kerala 1975 Ker LT 696. That was a case in which the petitioner therein filed a criminal complaint against the first respondent for theft of certain articles. Search warrant was issued. A cow and two calves were seized by the Police. The petitioner thereafter filed Crl. M. P. 2153 of 1975 under Section 451 of the Code for custody of the cow and calves. The second respondent filed Crl. M. P. 2151 of 1975 claiming that the cow and calves belong to her and they were in her possession at the time of seizure and that they should be released to her. The Court allowed Crl. M. P. 2153 of 1975 and dismissed Crl. M. P. 2151 of 1975. the second respondent filed revision before the Sessions Judge. The Sessions Judge allowed the revision and remanded Crl. M. P. 2151 of 1975 for disposal after taking evidence. Janaki Amma, J. was considering the revision petition against the order of remand,

7. In that case the second respondent was not interested in the case. She was an independent party claiming independent right over the cow and calves. According to her, the cow and calves were not those claimed by the petitioner in that case and ordered to be seized, but belonging to her independently. It was under such circumstances that the Court held that the Magistrate ought not to have entrusted custody to the petitioner under Section 451 without disposing of the claim of the second respondent which related to independent title over the cow and calves. It was in that context that the Court observed after considering various decisions on the point:

An interlocutory order is .one which is made pending the cause and before a final hearing on the merits. Whether a particular order is interlocutory or not, depends upon the nature of the petition which is disposed of and its connection with the main proceedings and its bearing on the final order in the main proceedings. The meaning to be given to the expression 'final order' should be the same in civil and criminal cases. A final order is an order which finally determines the points in dispute and brings the case to an end. The order in Crl. M. P. 2153/75 being an order for interim custody is no doubt an interlocutory order. But the order in Crl. M. P. 2151/75 stands on a different footing. The second respondent claims the cow and the calves in her own right and is not interested in the controversy between the petitioner and the first respondent or the ultimate disposal of the complaint. She has to establish her claim independently of the complaint. It is true that since a cow and two calves have been included in the subject-matter of the theft, Crl. M. P. 2151 of 1975 if allowed may influence the final disposal of the complaint. But that is no ground for correlating the order therein with the complaint for deciding whether it is an interlocutory order. The order in Crl. M. P. 2151 of 1975 finally disposed of the case of the 2nd respondent and is therefore not an order falling under Section 397(2) of the Cr. P.C. The revision petition before the Sessions Judge was therefore maintainable.

8. The interpretations and meanings given in that decision will have to be understood in the context in which they were given. In that case, the Court found that rejection of the claim of the second respondent, which was passed on independent title irrespective of the controversies in the complaint, was a final rejection of the claim and not an interlocutory order. As contended by the revision petitioner before me that decision has not held that an order on a petition for interim custody by a stranger under Section 451 of the Code will be a final order subject to revision. What the Court decided was that the claim of the second respondent was independent in her own right irrespective of the controversies between the petitioner and the first respondent and in order to succeed in her petition the second respondent had to establish her claim independently of the complaint. That is why the Court said that if the claim of the second respondent is allowed, it may affect the final disposal of the complaint;, but that is no ground for correlating the order therein to the complaint for deciding whether it is an interlocutory order.

9. In this case, the position is entirely different. Petitioner and Jainai, even on the allegations in the revision petition, are agents of the Company which claims to be the owner of the vehicle entitled to custody on the basis of the seizure made under the provisions of the hire purchase agreement. The accused and the petitioner are only persons claiming under the Company, which claimed ownership or right to possession. As such the company is interested in the subject-matter of the complaint and it is on behalf of the company that the petitioner has filed the petition. That petition is admitted by him to be one under Section 451 of the Code. The petition filed by the first respondent was also under the same provision. Both the persons claimed to be interested in the subject-matter and their prayers were only for interim custody. Even if the petitioner was not interested in the subject-matter, the position may not be different because the petition and order were only under Section 451, which will not settle the disputes finally. Therefore, the above decision is not applicable to the facts of the present case. Rejection of the petitioner's claim and the order allowing the claim of the first respondent were not final orders. It is a common order which is only interlocutory and therefore, no revision will lie.

The revision petition cannot, therefore, be admitted, and it is hereby dismissed as not maintainable.


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