Jharkhand High Court
Kapur Ganjhu vs The State Of Jharkhand on 5 February, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr.M.P. No.2928 of 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2928 of 2022
Kapur Ganjhu, aged about 28 years, son of Tufani Ganjhu, resident of
Village- Bhabrahi Postiya, P.O.- Bashistanagar, P.S.- Bashistanagar,
Dist.- Chatra
.... Petitioner
Versus
The State of Jharkhand
.... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Anupam Anand, Advocate
For the State : Mr. V.K. Vashistha, Spl. P.P.
.....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for
setting aside the order dated 28.02.2022 passed by the learned
Sessions Judge-cum-Special Judge (NDPS), Chatra in Miscellaneous
Criminal Application No.1256 of 2021 arising out of Bashistanagar
P.S. Case No.58 of 2021, corresponding to N.D.P.S. Case No. 192 of
2021 whereby and where under, the learned Sessions Judge-cum-
Special Judge (NDPS), Chatra has rejected the prayer of the
petitioner for release of the Honda Shine Motorcycle bearing
registration no. JH-13E-5720 which was seized in connection with
the said case.
2 Cr.M.P. No.2928 of 2022
3. The brief fact of the case is that the police on secret information
came to know that the accused persons of the case are travelling in a
motorcycle loaded with opium; established an ambush. On seeing
the seized motorcycle, police stopped it. The three riders of the
motorcycles on seeing the police team parked the motorcycles and
fled away. The two motorcycles were apprehended by police with
two sacks of opium loaded upon the same and also the four accused
persons of the case.
4. The learned Sessions Judge-cum-Special Judge, NDPS Cases,
Chatra rejected the prayer for release of the vehicle in favour of the
petitioner on the ground that the petitioner has failed to produce up
to date and valid insurance paper of the said seized Honda
motorcycle, supplementary investigation is still pending for report
of the State Forensic Science Laboratory, Ranchi and in the report of
the officer-in-charge of Bashistanagar, the police has not clearly
expressed non-necessity of the vehicle in course of further
investigation and rejected the prayer for release of the vehicle.
5. It is submitted by the learned counsel for the petitioner that a
coordinate Bench of this Court in the case of Mangan Kumar vs. The
State of Jharkhand in Cr.M.P. No. 1622 of 2020 dated 14.09.2021 has
held that the order rejecting the release of the vehicle in question is
interlocutory in nature which cannot be subject matter of revision
and on the basis of such observation of the coordinate Bench, the
petitioner though earlier filed criminal revision no. 319 of 2022 but
filed an interlocutory application no.5608 of 2022 and vide order
dated 17.08.2022 in the said interlocutory application, the coordinate
Bench of this Court has allowed the interlocutory application and
permitted the conversion of the criminal revision into criminal
3 Cr.M.P. No.2928 of 2022
miscellaneous petition. Drawing attention of this Court to
Annexure-3 of this criminal miscellaneous petition at page no. 32, it
is submitted by the learned counsel for the petitioner that the said
Honda Shine motorcycle has been having a valid insurance from
02.03.2022 (08:03:05) hrs. to 01.03.2023 Midnight hence, it is
submitted that though on 28.02.2022, there was no valid insurance
policy but subsequently, the petitioner has obtained the insurance
policy for the period 02.03.2022 (08:03:05) hrs. to 01.03.2023
Midnight. It is next submitted by the learned counsel for the
petitioner that the insurance policy has even expired and the
petitioner undertakes to obtain a fresh insurance policy in respect of
the motorcycle in question. Hence, it is submitted that the order
dated 22.08.2022 be quashed and the petitioner be given the liberty
to file a fresh application annexing therewith a valid insurance
policy in respect of the motorcycle in question.
6. Learned Spl. P.P. submits that the order dated 28.02.2022 being not
an interlocutory order, this criminal miscellaneous petition is not
maintainable. Relying upon the judgment of Hon'ble Andhra
Pradesh High Court in the case of P. Hussain vs. State of Andhra
Pradesh reported in 2021 SCC OnLine AP 1914, paragraph nos.10,
11 and 12 of which reads as under:-
"10. At para.15 of the aforesaid Madras High Court
judgment, it is held as follows:
"15. I do not agree with the learned counsel for the
respondent that it is an interlocutory order and no
revision lies under Section 397(2) Cr.P.C. The order in
question substantially affects the rights of the parties. If
so, it cannot be considered to be an interlocutory order. In
view of the decision of the Apex Court in Amar Nath v.
State of Haryana, (1977) AIR SC 2185 = 1977 CriLJ 1891
= (1977) 4 SCC 137, decisions of several High Courts and
also the observations of the Hon'ble Supreme Court, as
cited supra, the orders passed under Section 451 of
4 Cr.M.P. No.2928 of 2022
Cr.P.C. cannot be essentially an interlocutory order and
therefore, Section 397(2) of Cr.P.C. is not attracted."
11. Therefore, the legal position is made very clear that an
order under Section 451 Cr.P.C. is not an interlocutory order
and it does not attract the bar under Section 397(2) Cr.P.C.
and revision under Section 397(1) Cr.P.C. is maintainable.
12. Therefore, in view of the aforesaid legal position, this
Criminal Petition filed under Section 482 Cr.P.C. is not
maintainable."
It is submitted by learned Spl. P.P. that order under Section 451 of
Code of Criminal Procedure is not interlocutory order.
7. To buttress his submission, learned Spl. P.P. also relies upon the
judgment of Allahabad High Court in the case of Anis vs. State of
U.P. & Anr. reported in 2014 SCC OnLine All 16325, paragraph
no.11 of which reads as under:-
"11. From a perusal of the entire record, it is clear that the
said currency note, which has been released in favour of the
informant/complainant, was in the custody of the Court
below. Therefore, the provisions enumerated under section 451
Cr.P.C. are clearly applicable to the present matter and the
order passed on the release application under section 451
Cr.P.C. is revisable one. The Apex Court in the case of
Sunderbhai Ambalal Desai v. State of Gujarat, [2003 (46)
ACC 223 (SC).] has held that the property in the custody of
the Court should be released at the earliest. Since the applicant
has approached this Court directly without availing statutory
remedy of filing revision, this Court does not find any ground
to invoke its inherent jurisdiction and to analyse/adjudicate
the matter on merits. It is open to the applicant to file revision
before the concerned District and Sessions Judge against the
impugned order and may raise all questions, raised by him in
this Court, which shall be dealt with/considered by the
Revisional Court."
8. In this respect, learned Spl. P.P. also relies upon the judgment of
Hon'ble Himachal Pradesh High Court in the case of Praveen
Kumar vs. The State of Himachal Pradesh & Anr. reported in 1989
SCC OnLine HP 55, paragraph no. 12 of which reads as under:-
"12. An application under Sec. 451 Cr. P.C. has to be decided
by the Court after hearing the parties seeking the release of the
property in question. The parties are allowed to adduce
evidence and it is only after hearing them that the Court
5 Cr.M.P. No.2928 of 2022
passes the order thereby giving the custody of the property to
one of them who may be adjudged by the Court to be best
entitled for the same. To say that such an order is revisable by
the Court on the termination of the proceedings or in between
is no reason to call the order interlocutory order. Till such an
order is made, it is final between the parties and the
Magistrate cannot arbitrarily or without proper justification
change the same during the course of the proceedings. The
argument of the petitioner that such an order becomes final on
the termination of the proceedings cannot be accepted because
even that order is subject to determination by a Civil court.
Therefore, in the light of the decision of the Supreme Court in
Madhu Limaye's case (1978 Cri LJ 165) (supra), it can be held
that this kind of order is final between the parties deciding
their entitlement to the property in question finally at that
stage. Therefore such an order is necessarily subject to revision
by the Court and revision against the same is competent before
a Court of Session. The view which I have taken has a support
from 1981 Cri LJ 1529 (Andh Pra)Bharat Heavy Electricals
Ltd. v. State and 1974 Cri LJ 231 (Ishar Singh v. The State of
Punjab) The argument of Sh. S.S. Kanwar on this count,
therefore, fails and is rejected."
9. Learned Spl. P.P. further relied upon the judgment of Hon'ble
Punjab and Haryana High Court in the case of Ishar Singh vs. The
State of Punjab & Ors. reported in 1973 SCC OnLine P&H 138,
paragraph no.7 of which reads as under:-
"7. The truck in dispute was a case property and the trial
Magistrate was competent to make such order as he thought fit for
its proper custody under section 561-A, Criminal Procedure Code,
pending conclusion of the trial. Under section 435, Criminal
Procedure Code, the High Court or the Sessions Court or District
Magistrate or any Sub-Divisional Magistrate is empowered to call
for and examine the record of any proceedings before any inferior
Court and satisfy himself as to the correctness, legality or
propriety of any order passed by the Magistrate. This is a
supervisory jurisdiction of the superior criminal Court in order to
correct miscarriage of justice. If the petitioner was not satisfied
with the order passed by the learned Magistrate, he could file a
revision against the same in the Court of Session and as that
remedy was open to him, he could not invoke the powers of the
High Court under section 561-A, Criminal Procedure Code,
because where there are express provisions of law, there is no
inherent power in the High Court to override them. The inherent
power cannot be exercised by the High Court in a manner which
6 Cr.M.P. No.2928 of 2022
will be contrary to or different from the procedure expressly
provided for the Court under the Criminal Procedure Code it is
thus evident that the remedy to the petitioner against the order of
the learned Magistrate was covered under the provisions of the
Code of Criminal Procedure. It is not a case where there was any
legal bar against the institution of the Criminal proceedings
against the petitioner or that no case was made out against him on
the allegations made in the first information report. As such, it is
not a case in which the inherent powers of the High Court could be
exercised. This petition is, therefore, dismissed with no order as to
costs."
10. Learned Spl. P.P. next relies upon the judgment of Hon'ble
Karnataka High Court in the case of T. Narayanaswamy vs. State of
Karnataka & Anr. reported in 1992 SCC OnLine Kar 257, paragraph
no.5 of which reads as under:-
5. xxxx xxxx xxxx xxxx
Mr. Gopalakrishna invited my attention to the decision in
Nathu Lal v. State, 1976 Crl. L.J. 358 and argued, the order
passed under Section 451, Crl. P.C. was in the very nature
interlocutory, because it was an order passed during the
pendency of the proceeding and subject to the final
determination on the conclusion of the trial. No doubt, the
decision supports his contention. But with due respect, I am
unable to persuade myself to accept it as laying down the
correct law on the question. The provisions of Section 451,
Crl. P.C. empowers the court to make such order as necessary
for interim custody of the property produced before the court
during the enquiry and trial and any order passed under
Section 451, Crl. P.C., so far as that stage is concerned, would
be final between the parties, in that it concludes who among
the contending parties would be entitled to the interim
custody and is final as between the contending parties and is
therefore open to revision."
and submits that this criminal miscellaneous petition being not
maintainable, the same be dismissed.
11. Having heard the submissions made at the Bar and after going
through the materials in the record, it will be appropriate to refer to
Section 451 of Code of Criminal Procedure which reads as under:-
7 Cr.M.P. No.2928 of 2022
451. Order for custody and disposal of property pending
trial in certain cases.--When any property is produced before
any Criminal Court during any 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."
12. The plain reading of Section 451 of Code of Criminal Procedure
makes it abundantly clear that the same envisages entrustment of
property custodia legis by providing for a criminal court to make such
order for proper custody of the property produced before it during
any inquiry or trial pending conclusion of the inquiry or trial. It also
provides that if the property is subject to speedy and natural decay
or if it is otherwise expedient, the court may after recording such
evidence, as it things necessary, order it to be sold or otherwise
dispose of.
13. So in case, if the property is required to be sold or if it is otherwise
expedient, only then the court may record such evidence as it thinks
necessary; obviously not otherwise.
14. It is also crystal clear that adjudication of the ownership of the
property in not a sine-qua-non for passing an order under Section 451
of Code of Criminal Procedure by criminal court in any inquiry or
trial for proper custody of such property; pending conclusion of the
inquiry or trial. In case, there are two claimants of a property, some
sought of adjudication may arise for the criminal court for release of
8 Cr.M.P. No.2928 of 2022
the seized property in favour of either or any of them; as the case
may be. As it is not a necessity for a criminal court to record
evidence, for entrusting the seized property for the proper custody
so the corollary is that obviously if the need so arises, the criminal
court has the power to change its decision and entrust the custody of
the property to someone else if the person to whom the custody of
such property has been entrusted expressed his inability or for any
other reason.
15. Under such circumstances, certainly, in the considered opinion of
this Court, it cannot be said that all the orders passed under Section
451 of Code of Criminal Procedure whether it involves any
adjudication of any manner regarding the ownership or not
substantially affects the right of the party. So in the considered
opinion of this Court holding that all the orders passed under
Section 451 of Code of Criminal Procedure are not interlocutory
orders will not be proper.
16. Otherwise also, as in this case, a coordinate Bench of this Court has
already allowed the conversion of the criminal revision to a criminal
miscellaneous petition by a judicial order, it will not be proper for
this Bench to not entertain this criminal miscellaneous petition on
the ground of maintainability of the same. More so, in view of the
settled principle of law as has been held by the Hon'ble Supreme
Court of India in the case of Prabhu Chawla vs. State of Rajasthan
& Anr. reported in (2016) 16 SCC 30, paragraph no.6 of which reads
as under:-
6. In our considered view any attempt to explain the law
further as regards the issue relating to inherent power of the
High Court under Section 482 CrPC is unwarranted. We
9 Cr.M.P. No.2928 of 2022
would simply reiterate that Section 482 begins with a non
obstante clause to state:
"482. Saving of inherent powers of High Court.--Nothing
in this Code shall be deemed to limit or affect the inherent
powers of the High Court to make such orders as may be
necessary to give effect to any order under this Code, or to
prevent abuse of the process of any court or otherwise to
secure the ends of justice."
A fortiori, there can be no total ban on the exercise of such
wholesome jurisdiction where, in the words of Krishna Iyer, J.
"abuse of the process of the court or other extraordinary
situation excites the Court's jurisdiction. The limitation is
self-restraint, nothing more". (Raj Kapoor case [Raj Kapoor
v. State, (1980) 1 SCC 43 : 1980 SCC (Cri) 72] , SCC p.
48, para 10)
We venture to add a further reason in support. Since Section
397 CrPC is attracted against all orders other than
interlocutory, a contrary view would limit the availability of
inherent powers under Section 482 CrPC only to petty
interlocutory orders! A situation wholly unwarranted and
undesirable."
17. As also in the case of Pepsi Foods Ltd. And another v. Special
Judicial Magistrate, & Ors reported in (1998) 5 SCC 749, paragraph
nos.22 and 26 of which reads as under:-
"22. It is settled that the High Court can exercise its power of
judicial review in criminal matters. In State of Haryana v.
Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : JT
(1990) 4 SC 650] this Court examined the extraordinary
power under Article 226 of the Constitution and also the
inherent powers under Section 482 of the Code which it said
could be exercised by the High Court either to prevent abuse of
the process of any court or otherwise to secure the ends of
justice. While laying down certain guidelines where the court
will exercise jurisdiction under these provisions, it was also
stated that these guidelines could not be inflexible or laying
rigid formulae to be followed by the courts. Exercise of such
power would depend upon the facts and circumstances of each
case but with the sole purpose to prevent abuse of the process
of any court or otherwise to secure the ends of justice. One of
such guidelines is where the allegations made in the first
information report or the complaint, even if they are taken at
their face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against the
accused. Under Article 227 the power of superintendence by
the High Court is not only of administrative nature but is also
of judicial nature. This article confers vast powers on the High
Court to prevent the abuse of the process of law by the inferior
courts and to see that the stream of administration of justice
remains clean and pure. The power conferred on the High
Court under Articles 226 and 227 of the Constitution and
under Section 482 of the Code have no limits but more the
power more due care and caution is to be exercised while
invoking these powers. When the exercise of powers could be
under Article 227 or Section 482 of the Code it may not
always be necessary to invoke the provisions of Article 226.
Some of the decisions of this Court laying down principles for
the exercise of powers by the High Court under Articles 226
and 227 may be referred to.
26. Nomenclature under which petition is filed is not quite
relevant and that does not debar the court from exercising its
jurisdiction which otherwise it possesses unless there is special
procedure prescribed which procedure is mandatory. If in a
case like the present one the court finds that the appellants
could not invoke its jurisdiction under Article 226, the court
can certainly treat the petition as one under Article 227 or
Section 482 of the Code. It may not however, be lost sight of
that provisions exist in the Code of revision and appeal but
some time for immediate relief Section 482 of the Code or
Article 227 may have to be resorted to for correcting some
grave errors that might be committed by the subordinate
courts. The present petition though filed in the High Court as
one under Articles 226 and 227 could well be treated under
Article 227 of the Constitution." (Emphasis supplied)
18. It is also a settled principle of law that mere availability of
alternative remedy cannot be a ground to disentitle the relief under
Section 482 of Code of Criminal Procedure as has been held by the
Hon'ble Supreme Court of India in the case of Vijay vs State of
Maharashtra reported in AIR 2017 SC 397, paragraph no.9 of which
reads as under:-
"9. In view of the above settled law, mere availability of
alternative remedy cannot be a ground to disentitle the relief
under Section 482 Cr.P.C. and, apart from this, we feel that
the learned Judge without appreciating any of the factual and
legal position, in a mechanical way, passed the impugned
order, which warrants interference by this Court.
Accordingly, the order of the High Court is set aside and the
matter is remanded to the High Court for reconsideration in
the light of the settled legal position." (Emphasis supplied)
19. Under such circumstances, this Court is of the considered view
that there is no merit in the contention of the learned Special Public
Prosecutor that this criminal miscellaneous petition is to be
dismissed for being not maintainable.
20. Now coming to the facts of the case, one of the ground for which
the prayer for release of the vehicle in favour of the petitioner was
rejected by the Sessions Judge was that the petitioner was not having
a valid insurance paper but as has been submitted by the learned
counsel for the petitioner that the petitioner is ready and willing to
file a fresh application along with the valid insurance paper in
respect of the motorcycle in question. It is pertinent to mention here
that the certificate of officer-in-charge of a police station is not a sine-
qua-non for a court to pass an order for release of a seized property
produced before it in a criminal case. Similarly, whether or not the
report of Forensic Science Laboratory has been received is not also
may not be a relevant consideration for deciding to release the
vehicle seized in connection with a case; particularly a case, like the
instant case. Now as no cogent reason has been assigned by the
Sessions Judge, except that the vehicle in question was not having a
valid insurance policy, the order dated 28.02.2022 passed by the
learned Sessions Judge-cum-Special Judge (NDPS), Chatra in
Miscellaneous Criminal Application No.1256 of 2021 arising out of
Bashistanagar P.S. Case No.58 of 2021, corresponding to N.D.P.S.
Case No. 192 of 2021 is not sustainable in law.
21. Accordingly, the order dated 28.02.2022 passed by the learned
Sessions Judge-cum-Special Judge (NDPS), Chatra in Miscellaneous
Criminal Application No.1256 of 2021 arising out of Bashistanagar
P.S. Case No.58 of 2021, corresponding to N.D.P.S. Case No. 192 of
2021 is quashed and set aside.
22. The petitioner is given liberty to file fresh application for release of
the vehicle annexing therewith a valid insurance paper in respect of
the seized motorcycle in question and if such an application is made,
the learned Sessions Judge-cum-Special Judge (NDPS), Chatra is
directed to consider the same in accordance with law.
23. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 5th February, 2024
AFR/Sonu-Gunjan/-
