( 1 ) THIS petition raises a short but important question namely whether an order made under S. 451 Crpc 1973, by a Criminal Court without notice to or hearing the party adversely affected can be reviewed, and it arises in the following circumstances: On the complaint of the 2nd respondent hanumantha Gowda a charge-sheet for the offences under Ss. 379 and 411, r/w 34 of the IPC was ultimately filed against the petitioners on 20-10-1976 in CC. 29711976 in the Court of the Judicial Magistrate, First Class, Laxmeswar, inter alia, alleging that on 21-9-1976 the petitioners committed theft of 4 she-buffaloes belonging to the 2nd respondent Hanumantha gowda. It appears that the 4 she-buffaloes were seized and given to the custody of the police-patil during investigation. Then on 21-10-1976, the 2nd respondent's Advocate filed an application under S. 451 Crpc in the said Court for the custody of the 4 she-buffaloes. The learned Magistrate on the same day without notice to or hearing any of the petitioners made an order directing the 4 she-buffaloes to be given to the custody of the 2nd respondent till the conclusion of the trial en his execution a bond in a sum of Rs. 3000. It appears, till 25-10-1976, the 2nd respondent, did not execute a bond as ordered and on that day the 2nd petitioner too filed an application under S. 451 Crpc stating that the 4 she-buffaloes belonged to him and they were seized from his possession and they should be given to his custody. The learned Magistrate taking the view that in view of the order already made on 21-10-1976 under S. 451 Crpc in favour of the 2nd respondent the application filed by the 2nd petitioner under S. 451 Crpc is not tenable, dismissed the same by his order dt. 18-11-1976, and it is that order that is assailed in this petition.

( 2 ) IT is obvious from the above that the learned Magistrate appears to think that under S. 451 Crpc it was open to him to make an ex parte order such as the one made on 21-10-1976 and that order must be regarded as final pending conclusion of ithe inquiry or trial. But in my opinion, there is no warrant at all for such a view. There may be compelling circumstances to make an order under S. 451 Crpc without notice to or hearing the party adversely affected, but an order passed in that way can- only be an interim order subject to vacation or variation or confirmation after hearing the parties concerned. In this connection, I may refer to the following observations in Ramchetsing v. Deoji Kalyani (AIR 1942 Bom 42):" It may be that circumtances of urgency may necessitate the passing of ex parte order, but orders passed in that way can only be interim orders subject to vacation or variation or confirmation after hearing the parlies concerned. "in that case their Lordships were considering an order made under S. 516a, crpc (old) which Corresponds to S. 451 Crpc (new) and while repelling the contention advanced at the Bar that even an ex parte order must be regarded as a final order pending conclusion of the inquiry or trial, observed as above. The view I have taken also finds support in the decision in mohammad Yosuff v. Abdul Ahmad Shah ( (1972) 2 Crlj 1613 ). In that case, while considering the question whether an ex parte order made under S. 516a,crpc (old) is open to review, their Lordships said thus :" Once an order is made under this section the Court becomes functus offcio in the matter and cannot entertain a fresh prayer for the same relief unless and until the order has been set aside. In other words the Court has no power to review an order made under this section, for there is none given by he Code of Criminal Procedure nor can one be found in 'the absence of a direct statutory provision. On the other hand the principle of law inferable from S. 369 of the Crlpc is to the contrary, That section provides that the judgment of a Criminal court is final so far as that Court is concerned and cannot be reviewed or altered except where it is otherwise provided

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