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1991 Supreme(Pat) 12
PATNA HIGH COURT
L.P.N.Shahdeo, J.
Ram Kishore Thakur
Versus
Shyam Bihari Giri
Criminal Miscellaneous No. 2661 of 1989 ; 2569 of 1989 ;
Decided On : JANUARY 07, 1991
An order passed under Section 451 of the Cr.P.C. for release of the property in question in favor of one of the contending persons is a final order and not interlocutory in nature. A revision against such an order is maintainable before the Sessions Judge.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 451 - ORDER FOR RELEASE OF PROPERTY - REVISABILITY - ORDER PASSED UNDER SECTION 451, CR.P.C. IS A FINAL ORDER AND NOT INTERLOCUTORY IN NATURE - REVISION AGAINST SUCH ORDER IS MAINTAINABLE BEFORE THE SESSIONS JUDGE.
Fact of the Case:
The petitioner, Ram Kishore Thakur, was involved in a case under Sections 441, 323, 596, and 279 of the Indian Penal Code (IPC) for allegedly forcibly taking away a truck from the opposite party, Shyam Bihari Giri. The Additional Chief Judicial Magistrate (ACJM) ordered the release of the truck in favor of the petitioner. The opposite party filed a revision petition before the District and Sessions Judge, who allowed the revision and ordered the release of the truck in favor of the opposite party. The petitioner filed two criminal miscellaneous applications challenging the orders of the Sessions Judge.
Finding of the Court:
The court held that the order passed under Section 451 of the Cr.P.C. for release of the property in question in favor of one of the contending persons is a final order against which a revision is maintainable before the Sessions Court. The court further held that the Sessions Judge did not exercise any inherent power in clarifying his earlier order, but only passed an order as desired by the trial court, making necessary clarification in his earlier order.
Issues: 1. Whether the order passed under Section 451 of the Cr.P.C. for release of the property in question is a final order or an interlocutory order? 2. Whether a revision against such an order is maintainable before the Sessions Judge? 3. Whether the Sessions Judge exercised any inherent power in clarifying his earlier order?
Ratio Decidendi: 1. The court held that the order passed under Section 451 of the Cr.P.C. for release of the property in question in favor of one of the contending persons is a final order and not interlocutory in nature. The court reasoned that such an order decides the right of a party at that stage and affects the fundamental right of a person to hold a property. The court further held that there must be some control with regard to the order passed by a Magistrate in relation to a property which is produced before the Court or which in its custody. 2. The court held that a revision against such an order is maintainable before the Sessions Judge. The court reasoned that the order passed under Section 451 of the Cr.P.C. is a final order between the parties and the Magistrate cannot till the termination of the proceeding arbitrarily or without proper justification change the same during the course of the proceeding. The court further held that the contention that such an order becomes final on the termination of the proceeding cannot be accepted because even that order is subject to the determination by a Civil Court. 3. The court held that the Sessions Judge did not exercise any inherent power in clarifying his earlier order, but only passed an order as desired by the trial court, making necessary clarification in his earlier order. The court reasoned that when an order is passed, if certain matter remains to be clarified, the Court is competent to clarify that matter and in doing so, it cannot be said that he has exercised the inherent power which is not vested in it.
Final Decision: The court dismissed both the criminal miscellaneous applications filed by the petitioner.
L.P.N.Shahdeo, J.
1. These two criminal miscellaneous applications have been taken up together as they arise out of the same matter in connection with the same truck which is involved in the instant case.
2. Criminal Misceallaneous Nos. 2661/89(R), is directed against the order passed in Cr. Revision No. 13-C/17 of 1989 by the District and Sessions Judge, Jamshedpur, on 7.4.1989, by which he has allowed the revision ordering for release of the truck in question, WMK 3924, in favour of the opposite-party No. 1.
3. Criminal Miscellaneous No. 2659/89 (R), is directed against the order of the District and Sessions Judge, Jamshedpur dated 21.7.1989, by which he has clarified his earlier order passed in Criminal Revision No. 13-C/17 of 1989.
4. It appears that the Additional C.J.M., Jamshedpur by his order dated 12.1.1989, had ordered the release of the truck WMK 3921, in favour of the petitioner, Ram Kishore Thakur. It appears that opposite-party No. 1, Shyam Bihari Giti, had instituted a case Sakchi P. Section case No. 216/88, on 25.11.1988 under Secs. 441, 323, 596 and 279, I.P.C. alleging that the accused of that case who is the petitioner in these cases, namely Ram Kishore Thakur, forcibly took away that truck on 5.11.1988 ultimately that truck seized by the police.
5. It appears that the petitioner and the opposite-party No. 1, both had filed a petition for release of the truck before the Additional C.J.M., Jamshedpur. After hearing the parties, the Additional C.J.M., passed the impugned order. It appears that thereafter, police submitted foal form, which was accepted by the Court on 10.11.1989, and the case was ultimately dismissed. It appears that the trial court had ordered for release of the truck in favour of the petitioner, and against that order of the trial court, the opposite-party, Shyam Bihari Giri, filed a criminal revision before the Sessions Judge, being Criminal Revision No. 13-C/17 of 1989, which was allowed and the order of the A.C.J.M. was set aside on 7.4.1989, by the Sessions Judge, who ordered the truck to be released in favour of the opposite-party No. 1. It appears that according to the trial court, the order was not clear and, therefore, he wanted clarification of the same from the Sessions Judge. The matter was registered as Cr. Misc. No. 9-C/89 and the order was clarified by the Sessions Judge with regard to the release of the truck, in favour of the opposite-party, Shyam Bihari Giri.
6. Mr. P.S. Dayal, learned Counsel appearing on behalf of the petitioner has submitted that the order passed in Cr. Misc. No. 2661/89 (R), is interlocutory in nature and no revision lies against that as the order passed under Section 451, Cr.P.C. is not revisable orders and, therefore, the Sessions Judge had no jurisdiction or authority to interfere with the order passed by the trial court, exercising jurisdiction in revision. In Cr. Misc. No. 2659/89 (R), it was submitted that the Court had no inherent power to pass any such order or making any clarification and, therefore, those two orders passed by the revisional court are wholly illegal and without jurisdiction.
7. On the other hand. Mr. T.K Bajaj. learned Counsel opposite-party No. 1 has submitted that the order passed by the Sessions Judge, releasing the track in favour of the opposite-party No. 1 is not an interlocutory order and, therefore, there is no question of committing any error of jurisdiction by the Sessions Judge. It was submitted that the order-passed by the Sessions Judge in Cr. Misc. No. 9-C/R9 was necessitated, in order to make necessary clarification, as desired by the trial court.
8. It is admitted position that under Sec. 451 Cr.P.C. the Court is empowered to pass a suitable order for proper custody of the property, Pending conclusion of the trial. Under Sec. 452. Cr.P.C. the Court has also been empowered to pass necessary orders, after conclusion of the enquiry or trial as the court may think fit. for disposal of the property. It pagers t
