1. In the present revision case, a preliminary objection was taken by the learned Government Advocate (Crl.Side) appearing for the respondent police that the revision case is not maintainable under Section 397 of Cr.P.C., against the order passed by the Court below under Section 451 of Cr.P.C., refusal of return of properties. According to the learned Government Advocate, the order being passed under Section 451 of Cr.P.C., is only an interlocutory in nature and such order is not open to challenge in the revision case, in view of the bar of Section 397(2) of Cr.P.C., which, is extracted hereunder.

“(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.”

2. The learned Government Advocate would also refer to the contents of Section 451 of Cr.P.C. which provides for passing of order pending conclusion of the enquiry or trial and therefore this revision case is against such interlocutory order passed by the learned Magistrate under Section 451 of Cr.P.C., which is extracted hereunder for appreciation of the preliminary objection raised by the learned Government Advocate (Crl.Side) appearing for the respondents.

“451. Order for custody and disposal of property pending trial in certain cases.

When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Explanation.—

For the purposes of this section, "property" includes—

(a) property of any kind or document which is produced before the Court or which is in its custody.

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.”

3. In support of his contention, the learned counsel straight away would draw the attention of this Court to the order passed by the learned Judge of this Court in Crl.MD.No.30 of 2012 dated 27.01.2012 in the case of K.Basha vs State. The learned Government Advocate would draw reference to paragraph nos. 8 to 10 of the order, which is extracted hereunder:

“8. If at all the petition for interim custody is returned in utter disregard of the directions of the Hon'ble Supreme Court issued in Sunderbai Ambalal vs. State of Gujarat's case, which was followed in a catena of cases by various High courts, the petitioner could have re-presented the petition drawing the attention of the Judicial Magistrate to the said judgment. Instead of doing it, the petitioner has chosen to file a revision before the High Court invoking sections 397 and 401 Cr.P.C, despite the existence of a provision in sub-section 2 of section 397 Cr.P.C. It shall also be appropriate to observe here that the tendency shown by some of the Judicial Magistrates in simply returning the petitions filed either under section 451 or under section 457 Cr.P.C seeking interim custody of the properties seized by the police citing the non- production of the property before the Magistrate as the reason will amount to dereliction of the duty on the part of the Judicial Magistrate, provided the petition is filed under appropriate provision without misleading the Magistrate as to the provision applicable, since section 451 and 457 Cr.P.C apply under different circumstances. A similar tendency is also seen on the part of the litigants to approach the revisional court against such return unmindful of the fact that such an order is only an interlocutory order and not a final order finally disposing of the petition and the petition could be represented stating how the reasons assigned by the court for the return of the petition are not correct.

9. Whe