Brajesh Chaubey vs The State Of Madhya Pradesh
2021 Latest Caselaw 5496 MP

                                                         1                               CRR-1636-2021
                              The High Court Of Madhya Pradesh
                                         CRR-1636-2021
                                      (BRAJESH CHAUBEY Vs THE STATE OF MADHYA PRADESH)

                      2
                      Jabalpur, Dated : 16-09-2021
                            Heard through Video Conferencing.
                            Shri Anil Khare, learned Senior Counsel with Ms. Tanvi Khare, learned
                      counsel for the applicant.
                            Shri Amit Bhurrak, learned Panel Lawyer appearing for the
                      respondent/State.

Applicant has filed this criminal revision under Section 397 read with Section 401 of Code of Criminal Procedure against order dated 06.07.2021 passed by the Special Judge, SC/ST Act, Katni, by which application under Section 457 of Code of Criminal Procedure for giving interim custody of vehicle Toyota Etios bearing No. GJ-15-CF-0855 was rejected.

2. Application filed by applicant was rejected only on the ground that vehicle was used for transportation of narcotic substances of commercial quantity and therefore, same is liable for confiscation.

3. This Court questioned learned Senior Counsel regarding

maintainability of criminal revision against an interlocutory order passed by trial Court. Learned Senior Counsel appearing for applicant has placed reliance on judgment passed by Division Bench in M.Cr.C. No. 12754/2021 (Sunita Shrivastava and another vs State of Madhya Pradesh), order dated 26.03.2021. In said case issue of maintainability of petition under Section 482 of Cr.P.C. against an order of refusal to release the vehicle on supurdaginama was raised. In said case, Division Bench in para 4 held that impugned orders have been passed by trial Court exercising powers under Section 451 and 457 of Code of Criminal Procedure, 1973 and it is well settled that such orders are not interlocutory orders and revision against them is not barred under Section 397 (2) of Code of Criminal

Signature Not Procedure and such orders are amenable to Revisional jurisdiction of the SAN Verified

Digitally signed by VINOD KUMAR TIWARI Date: 2021.09.22 17:33:14 IST 2 CRR-1636-2021 Court conferred under Section 397 of Code of Criminal Procedure. It was also held that when there is a specific provision then resort to inherent power of Court under Section 482 may not be made. An objection of office regarding maintainability of petition under Section 482 Cr.P.C. against the order was sustained. On strength of aforesaid judgment, learned Senior Counsel appearing for the applicant submitted that criminal revision against an

order passed under Section 451 and 457 of Cr.P.C. is maintainable before this Court.

4. Heard the counsel appearing for the parties.

5. Sections 457 and 451 of the Code of Criminal Procedure are reproduced below :-

"457. Procedure by police upon seizure of property. - (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.

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 Signature Not necessary, order it to be sold or otherwise disposed of. SAN Verified

Digitally signed by VINOD KUMAR TIWARI Date: 2021.09.22 17:33:14 IST 3 CRR-1636-2021 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."

6. Applicant has filed an application for release of his vehicle on supurdaginama under Section 457 of Cr.P.C. Application for release of vehicle on supurdaginama under Section 457 of Cr.P.C. is to be filed when property is seized by a police officer and matter is reported to Magistrate and property is not produced before Criminal Court during an enquiry or trial. Application under Section 457 of Cr.P.C. before Magistrate will be

maintainable at the stage of investigation and before filing charge-sheet before the Magistrate. Once charge-sheet is filed and property is produced before any Criminal Court during enquiry or trial then application for release of vehicle on supurdaginama on interim custody is to be filed under Section 451 of Cr.P.C.

7. While considering the application under Section 451 of Cr.P.C., Magistrate may make such order as it thinks fit for proper custody of such property pending conclusion of inquiry or trial. Magistrate hands over interim custody of property till pendency of trial so that evidence of case is in proper custody and same may not damage, decay or waste during pendency of trial. Only custody of property is granted to a person without touching the question of title over the property in question, however, if Magistrate thinks that property is subject of speedy and natural decay or it is otherwise expedient so to do, Court may after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of the property. Thus, Magistrate when passes an order after recording of evidence and passes order for selling the property or for disposal of property, same will touch upon the rights of the parties concerned, therefore, order will not be an Signature SAN Not interlocutory order, but a final order. But when Magistrate only passes an Verified

Digitally signed by VINOD KUMAR TIWARI Date: 2021.09.22 17:33:14 IST 4 CRR-1636-2021 order for giving custody or possession of property till conclusion of trial, then such order will be interim order. An order passed under Section 451 of Cr.P.C. may be an interim order or a final order, which depends upon the circumstances of each case. In this case, charge-sheet has already been filed, therefore, applicant ought to have filed an application under Section 451 of Cr.P.C. for interim custody of vehicle and his application for release of vehicle under Section 457 of Cr.P.C. before Magistrate was not maintainable. From impugned order dated 06.07.2021, it is clear that order is passed only for giving custody of vehicle and not disposal of vehicle after recording of evidence touching upon the rights of the parties. Therefore, impugned order dated 06.07.2021 cannot be said to be an order which is final in nature and therefore, criminal revision will not be maintainable against such order. I do not agree with the findings given by the Division Bench in M.Cr.C. No. 12754/2021 that order passed by the trial Court exercising power under Sections 451 and 457 of Cr.P.C. are not interlocutory orders and revision against them is not barred under Section 397(2) of Cr.P.C. Some orders passed under Section 451 of Cr.P.C. may be final but other orders passed under Section 451 may only be an interlocutory order. It is the nature of order, which has been passed by Judicial Magistrate, which determines whether order under Section 451 is final or interlocutory in nature. It cannot be said that all orders passed under Section 451 and 457 of Cr.P.C. are final in nature and revision will be maintainable against said order.

8. In view of aforesaid reasons, I deem it appropriate to direct Registry to place the matter before Hon'ble the Chief Justice to place the matter before Larger Bench to consider following important question of law arisen in the case as under : -

Whether all orders passed under Section 451 and 457 of Code of Criminal Procedure are final orders and revision application is maintainable against such order before higher forum under Section 397 of Code of Criminal Procedure, 1973?

Signature SAN Not Verified

Digitally signed by VINOD KUMAR TIWARI Date: 2021.09.22 17:33:14 IST 5 CRR-1636-2021 (VISHAL DHAGAT) JUDGE vkt

Signature SAN Not Verified

Digitally signed by VINOD KUMAR TIWARI Date: 2021.09.22 17:33:14 IST