IMPORTANT POINT
The court established that while Section 451 of the Cr.P.C. cannot be applied during the investigation, the court retains the discretion to invoke other provisions to prevent loss, particularly in cases involving perishable items.

ORDER :

HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

1. This is an application under Section 482 of the Cr.P.C. preferred by the State in which the Judgment and Order dated 07.03.2022 passed by the learned Sessions Judge, Hailakandi in Criminal Revision No. 12/2022 has been put to challenge. The aforesaid order arises out of an order dated 14.01.2022 passed by the learned Judicial Magistrate First Class, Hailakandi in Lala P.S. Case No. 846/2021 under Sections 379/411 of the IPC.

2. For better appreciation of the issue involved, the facts of the case may be stated in brief.

3. On 24.12.2021, a case was registered before the Lala Police Station, being Lala P.S. Case No. 846/2021 regarding storage and transportation of huge quantity of Burmese Betel Nuts which were suspected to be stolen. In the said search conducted, 394 nos. of gunny bags containing 20,020 Kilograms of the Burmese Betel Nuts was seized vide seizure list dated 22.12.2021.

4. The formal F.I.R. was lodged on 24.12.2021. While the investigation was going on, the respondent had filed a zimma petition for the commodities in which the learned Magistrate had called for a report which was accordingly submitted. Thereafter, vide order dated 14.01.2022, the zimmapetition was allowed in favour of the respondent. The aforesaid order of 14.01.2022 was the subject matter of challenge in Criminal Revision No. 12/2022 before the learned Sessions Judge, Hailakandi which was preferred by the State. The learned Sessions Judge, Hailakandi, however, vide order dated 07.03.2022 had dismissed the said revision petition. Consequently, the present application has been filed invoking the jurisdiction of Section 482 of the Cr.P.C.

5. I have heard Shri P.N. Goswami, learned Addl. Advocate General Assam for the petitioner -State whereas the sole respondent is represented by Ms. P. Sikdar, the learned counsel.

6. Shri Goswami, the learned Addl. Advocate General, Assam for the petitioner submits that the orders which are the subject matter of challenge arise from an application for zimma made under Section 451 of the Cr.P.C. which itself is a wrong provision of law. He submits that the provision of Section 451 of the Cr.P.C. is to be invoked only at the time of enquiry or trial and not at the stage of investigation and admittedly, in the instant case, the investigation is yet to be over. He therefore, submits that both the learned Court of the Judicial Magistrate First Class, Hailakandi as well as the learned Sessions Judge, Hailakandi had erred in exercising jurisdiction under the aforesaid provision of law. The learned State counsel submits that this aspect of the matter was overlooked leading to passing of the impugned orders which are liable to be interfered with.

7. The learned Addl. Advocate General, Assam, however fairly submits that under Chapter XXXIV of the Cr.P.C., there are other provisions which could have been taken into recourse for dealing the situation of this nature.

8. The learned State Counsel, accordingly submits that appropriate orders be passed for interfering with the order dated 07.03.2022 of the learned Sessions Judge by which the earlier order dated 14.01.2022 of the learned Judicial Magistrate, 1st Class, Hailakandi has been affirmed.

9. On the other hand, Ms. Sikdar, the learned Counsel for the respondent submits that when a second revision is barred under the provisions of Section 397 (3) of the Cr.P.C., the present petition under Section 482 of the Cr.P.C. has been filed only to circumvent the said legal bar and therefore, the same should not be entertained. The learned counsel further submits that the orders passed by the learned Judicial Magistrate 1st Class, Hailakandi dated 14.01.2022 and the order dated 07.03.2022, passed by the learned Sessions Judge, Hailakandi are reasoned order which do not call for any interference.

10. It is submitted that the learned Magistrate, before passing the order dated 14.01.2022 had taken into consideration the reports which were called f