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State of Rajasthan Vs. Ramnarayan Upadhaya - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 7 of 1972
Judge
Reported in1976WLN234
AppellantState of Rajasthan
RespondentRamnarayan Upadhaya
DispositionPetition dismissed
Cases ReferredIn Dhola v. The State
Excerpt:
.....relating to custody or possession of the seized articles have not been finally determined. the special judge merely passed an order that the articles seized from the house of ramnarayan petitioner way be entrusted to a superdar who would keep them intact and would not dispose them of in any manner till the result of the investigation of the criminal case pending against the non-petitioner under section 5(1)(d) and (e) and an--section (2) of section 5 of the act.;(b) prevention of corruption act - section 5(1)(d) & (2)--jurisdiction--property connected with commission of offence--held, magistrate has jurisdiction to order its disposal.;the property was seized by the police during the course of investigation because it was suspected to be connected with the commission of crimes..........j.1. this is an application in revision filed by the state of of rajasthan against an order of the special judge for anti-corruption department cases, rajasthan, jaipur, dated 25th september, 1975, by which ornaments, cash and silver utensils seized upon search from the house of ram narayan upadhya non-petitioners, were ordered to be delivered to a superddar of the status of a person paying income-tax on a nearly income of rs. 40,000/-, provided such superddar gave an undertiking that he would keep ornaments, cash and utensils intact and would not in any manner dispose them of.2. the short facts giving rise to this revision-petition may be narrated as follows.3. a complaint was received against ramnarayan upadhaya, enforcement officer, bikaner, that he, by corrupt or illegal means or.....
Judgment:

K.D. Sharma, J.

1. This is an application in revision filed by the State of of Rajasthan against an order of the Special Judge for Anti-Corruption Department cases, Rajasthan, Jaipur, dated 25th September, 1975, by which ornaments, cash and silver utensils seized upon search from the house of Ram Narayan Upadhya non-petitioners, were ordered to be delivered to a superddar of the status of a person paying income-tax on a nearly income of Rs. 40,000/-, provided such Superddar gave an undertiking that he would keep ornaments, cash and utensils intact and would not in any manner dispose them of.

2. The short facts giving rise to this revision-petition may be narrated as follows.

3. A complaint was received against Ramnarayan Upadhaya, Enforcement Officer, Bikaner, that he, by corrupt or illegal means or otherwise, abasing his position as a public servant, obtained for himself valuable things or pecuniary advantage and that be was in possession of pecuniary sources or property disproportionate to his known sources of income, for which he could not satisfactorily account. A preliminary inquiry was held by the Deputy Superintendents of Police. Anti-Corruption Department, Bikaner into the allegations made in this complaint. The Deputy Superintendent of Police found them prima-facie true. Hence a criminal case (FIR No. 39 of 1975) under Section 161, IPC read with Section 5(1), (d) and (e) and Section 5(2) of the Prevention of Corruption Act, hereinafter referred to as the Act, was registered against Ramnarayan Upddhyaya, non petitioner on 28th July, 1975. The Deputy Superintendent of Police, A.C.D., Bikaner, took up usual investigation into the case. In the course of investigation, the Deputy Superintendent of Police, ACD raided the house of the non-petitioner at Bikaner and conducted a search therein. As a result of the search, ornaments of gold and silver, cash, silver utensils etc. were recovered therefrom and seized by the Deputy Superintendent of Police. ACD Bikaner, as these properties were found to be disproportionate to the known sources of income of the non-petitioner and as the non-petitioner could not satisfactorily account for their possession. After seizure of the articles Ramnarayan Upadhaya presented an application on 5th September, 1975, in the court of the Special Judge for ACD cases, Rajasthan, Jaipur for obtaining an order that the properties be delivered to him on such conditions as the Special Judge might thought fit. Notice of this application was gives to the Additional Public Prosecutor, who hotly contested it. The Special Judge after hearing arguments came to a conclusion that the properties seized from the house of the non-petitioner could not be allowed to remain in possession of the. police for an indefinite period and that the mere fact that investigation in a case under Section 5(1)(d) and (e) and Sub-section (2) of Section 5 of the Act, is pending against the non petitioner does not crate as a bar to the passing of an order respecting the disposal of the property or the delivery thereof to the person entitled to its possession or respecting the custody and production thereof. Consequently the Special Judge passed the impugned order as stated above. Aggrieved by this order, the State has come up in revision to this Court.

4. I have carefully gone through the record and heard the arguments advanced by Mr. S.B Mathur, appearing on behalf of the State and Mr. M.M. Tiwari, has raised a preliminary objection that the powers of revision conferred by Sub-section (1) of Section 397 of the new Criminal Procedure Code cannot be exercised in revision in relation to an interlocutory order passed in inquiry, trial or other proceeding and that in view of this significant change brought about by Sub-section (2) of Section 397, the High Court and the Court of Sessions have no powers to entertain applications in revision against orders of interlocutory nature. It was further argued by Mr. M.M. Tiwari that the impugned order being an interlocutory order cannot be revised by this Court in exercise of its revisional jurisdiction. Mr. S.B. Mathur, appearing on behalf of the State, on the other hand, contended that this Court can interfere in relation to an interlocutory order also if such an order is passed without jurisdiction and is a nullity in the eye of law. In support of his above contention, he relied upon an authority of the Orissa High Court Deena Nath v. Daltari Charan 1975 CLJ 1931. According to him the impugned order passed by the Special Judge is not a legal one as he was not empowered to pass such an order under any provision of the Code of Criminal Procedure.

5. I have given my best consideration to the rival contentions. The pertinent question that arises for determination is whether the impugned order is an interlocutory order and whether such so order could legally be passed by the Special judge. For determining the question whether the order passed by the Special Judge is or is not an interlocutory order, it is necessary to find out the distinction between final order and interlocutory order. No definition of the words 'interlocutory order' is given in the Code of Criminal Procedure. Of course, there are judicial pronouncements on. Articles 133 and 134 of the Constitution of India and on Section 109 and 110 of the Code of Civil Procedure which may be helpful in finding out distinction between final and interlocutory orders. In Kuppuswami Rao v. The King AIR 1949 FC 1 and Mohd. Amin Bros. v. Dominion of India AIR 1950 FC 77, a test wad laid down for determining the finality of an order. The test is whether the rights of the parties have been finally disposed of by the judgment or the order in question or whether they have still to be determined after the passing of such order. Their Lordships further observed in the referred to above cases that the order becomes final only when the matter is not kept alive although it may have decided an important point in the case. The relevant observations made by their Lordships in Kuppuswami Rao v. The king AIR 1949 FC 1 are quoted below in extension to point out the distinction between final and interlocutory order:

The question then is whether in the present criminal case the order is a 'judgment, decree or final order of the High Court'? It is clearly not decree. It is also not a judgment, as it is only an interlocutory order made on a preliminary objection in the course of a criminal trial. It is also not a final order, as the order is not on a point which, decided either way, would terminate the matter before the court finally. In the words of Sir George Lowndes to constitute a final order it is not sufficient merely to decide an important or even a vital issue in the case, but the decision must not keep the matter alive and provide for its trial in the ordinary way. It is therefore clear that the order made on the criminal revision application by the Madras High Court is not a final order or judgment within the meaning of Section 205(1), Constitution Act. Indeed, if 'judgment' were to mean or include an interlocutory order, the words 'final order' in Section 205(1) Government of India Act, 1935, will be superfluous. The preliminary objection is therefore upheld and the appeal is dismissed.

Relying upon these decisions and some other authorities, a similar view was taken by Hon'ble G.K. Misra C.J. in Beima Naik v. State 1975 CLT 674 in the following words:

12. Applying the aforesaid tests to the facts of this case there is no escape from the conclusion that the impugned order dated 4-7-1974 is an interlocutory order. The order calling upon the petitioners to execute interim bonds did not put an and to the main proceeding under Section 107, Criminal Procedure Code Though the impugned order purported to decide a vital issue as to the execution of interim bonds it did not terminate the proceeding.

In Dhola v. The State 1975 RLW 22, Hon'ble B.P. Beri, Chief Justice of this Court considered the relevant authorities bearing on the question and observed in para 10 of his judgment, as follows;

On the basis of the aforesaid survey, it is reasonable to say that an interlocutory order is one which is passed at same intermediate stage of a proceeding generally to advance the cause of justice for the final determination of the rights between the parties. I see no reason to to hold that the expression ''interlocutory order'' changes its complexion when applied to the Code of Criminal Procedure, and on the touchstone of the authorities mentioned above. I am inclined to be of the view that the grant or refusal of a bail application is essentially an interlocutory order. My reasons briefly are that an accused is usually enlarged on bail in non-bailable canes to enable him to defend himself adequately and thereby assist to cause of justice: It is ordinarily at some intermediate stage between the commencement and the end of criminal cases that it is granted and further that it is open to recall or modification and it does not determine the guilt or innocence of the accused and thus fulfils all the characteristics usually attached to an interlocutory order. Therefore Mr. Bishnoi is right when be says that the learned Additional Sessions Judge had no jurisdiction to revise the order of the grant of bail by the learned Magistrate in view of the provisions of Section 397(g) of the New Code.

I am in full agreement with the essential tests laid down in these authorities for determining the distinction between final and interlocutory orders. Judged by these tests, the order under revision in the instant case cannot certainly be considered as a 'final order', because it is not an order respecting the final disposal of the properties seized from the house of Ramnarayan, non-petitioner. By this order, the rights of the parties relating to custody or possession of the seized articles have not been finally determined. The Special Judge merely passed an order that the articles seized from the house Ramnarayan petitioner may be entrusted to a Superddar who would keep them intact and would not dispose them of in any manner till the result of the investigation of the criminal case pending against the non-petitioner under Section 5(1)(d) and (e) and Sub-section (2) of Section 5 of the Act,

6. The next question that remains to be decided is whether the Special Judge had no jurisdiction to pass the impugned order and the order is a nullity for want of jurisdiction and can be interfered with in revision or is liable to be quashed under Section 482 of the new Code of Criminal Procedure, which saves the inherent jurisdiction of the High Court. In this connection, reference may be made to Sub-section (1) of Section 457 of the new Code of Criminal Procedure which reads as follows:

Whenever the seizure of property by any police officer is reported to a Magistrate under the provision of this Code, and such property is not produced before a Criminal Court during an inquiry 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, or if such person cannot be ascertained, respecting the custody and production of such property.

From a bare reading of this Sub-section, it appears that where property seized by the police during investigation on the ground that it is suspected to be connected with a crime, the Magistrate has jurisdiction to pass on, order regarding disposal of such property as soon as. the seizure thereof by any police officer is reported to him under the provisions of the Code of Criminal Procedure and such property is not produced before a criminal court during the inquiry or trial. In the present case, the property was seized by the police during the course of investigation because it was suspected to be connected with the commission of crimes under Section 5(1)(d) and (e) and Sub-section (2) of Section 5 of the Act. The seizure of the property by the police was brought to the notice of the Special Judge under the provisions of the Code of Criminal Procedure by way of applications filed by Ramnarayan, non-petitioner, Sita Devi and Damodar. The property was not produced before the criminal court during the inquiry or trial, because the investigation of the case against the non-petitioner, in which the property was seized, Las not yet been over, In these circumstances, the Special Judge had jurisdiction to pass an order regarding disposal of this property. It appeals that he could not ascertain with reasonable certainty as which of the persons namely, Ramnarayan, Sita Devi and Damodar was entitled to possession thereof. So he passed an order for safe custody of the property presumably with a view to have it produced, as and when required. Consequently, I do not feel persuaded to hold that the interlocutory order pasted by the Special Judge is a nullity in the eye of law for lack of jurisdiction off the Special Judge in passing it. As the impugned order passed by the Special Judge is c early an interlocutory order, it cannot be challenged by way of this revision-petition, which cannot be entertained in view of the bar provided in Sub-section (2) of Section 397, Cr.P.C. Such an order cannot be quashed under Section 482, Cr. P.C. also because inherent powers of the High Court cannot be invoked to override the express provisions of law contained in Sub-section (2) of Section 397, C.P.C. and also because there are no exceptional and extraordinary reasons in the instant case for the exercise of inherent powers to interfere with the interlocutory order in question.

7. For the foregoing reasons, the revision-petition filed by the State against the interlocutory order cannot be entertained in view of the express bar contained in Sub-section (2) of Section 397, Cr.P.C. 1973. I further hold that in the facts and the circumstances of the present case Section 482, of the New Code of Criminal Procedure also cannot be invoked for quashing the impugned order. The criminal revision fails and is hereby dismissed.


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