Case Note & Summary
The applicant, Madhukar Motiram Manohare, an agriculturist, filed an application under Section 482 of the Code of Criminal Procedure, 1973, before the High Court of Judicature at Bombay, Nagpur Bench, seeking to quash two orders: one passed by the Chief Judicial Magistrate, Yavatmal, on 30/12/2010, rejecting his application for return of seized household articles, and the other by the Additional Sessions Judge, Yavatmal, on 05/03/2011, dismissing his criminal revision as not maintainable. The property was seized during investigation of Crime No. 128/2010 registered at City Police Station, Yavatmal, on the ground that it was purchased out of stolen money. The applicant contended that he was a farmer, the articles were purchased from agricultural income under invoices, and no other claimant existed; thus the property should be returned pending trial. The trial Magistrate rejected the application, and the revisional Court held that the order was interlocutory and therefore revision was not maintainable. Before the High Court, the applicant argued that an order under Sections 457/452 CrPC is not interlocutory, relying on D'damas Jewellery India Pvt. Ltd. vs State of Maharashtra, and that the Magistrate failed to exercise discretion judiciously in line with the Supreme Court's guidelines in Sunderbhai Ambalal Desai v. State of Gujarat, which require preparation of a panchnama to prevent tampering, avoidance of hardship to the owner, and expeditious disposal. The respondent State did not dispute the maintainability of revision but requested expedition. The High Court, per Justice A. P. Bhangale, held that an order rejecting return of property affects the right to possession and is therefore not interlocutory; the revisional order was unsustainable. It further observed that the trial Magistrate must exercise discretion under Section 451 CrPC in a proper and judicial manner as an interim arrangement, guided by the principles in Sunderbhai Desai's case, without deciding title. Accordingly, the application was allowed, both impugned orders were quashed and set aside, and the trial Magistrate was directed to reconsider the application afresh in the light of Sunderbhai Ambalal Desai v. State of Gujarat and to endeavor to dispose of the criminal case expeditiously.
Headnote
A) Criminal Procedure Code, 1973 - Revision - Interlocutory Order - Section 397(2) - Order rejecting application for return of property under Sections 457/452 CrPC affects right to possession, thus is not an interlocutory order and revision is maintainable - Revisional Court erred in holding otherwise; order set aside (Paras 3-4). B) Criminal Procedure Code, 1973 - Custody and Disposal of Property Pending Trial - Section 451 - Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat, AIR 2003 SC 638, laid down that discretion must be exercised expeditiously and judiciously, with a panchnama to prevent tampering, considering the owner's interest and avoiding hardship - High Court directed Trial Magistrate to reconsider application afresh in light of these principles and to expedite trial (Paras 2-5).
Issue of Consideration
Whether the order rejecting return of property under Sections 457/452 CrPC is interlocutory and whether revision against it is maintainable; whether the trial Court should have exercised discretion under Section 451 CrPC in accordance with the principles laid down in Sunderbhai Ambalal Desai v. State of Gujarat
Final Decision
Application allowed; impugned orders quashed and set aside; learned trial Magistrate directed to consider application afresh in light of principles in Sunderbhai Ambalal Desai v. State of Gujarat, and to endeavor to dispose of the pending criminal case expeditiously.
Law Points
- Order under Sections 457/452 CrPC rejecting return of property is not interlocutory and revision is maintainable
- exercise of power under Section 451 CrPC for custody of property must be expeditious
- judicious
- with panchnama to prevent tampering
- consider owner's interest and avoid hardship
