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IN THE
TH HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL WRIT PETITION NO.1531 OF 2006
IN
CASE NO.685/N OF 2005
IN
C.R. NO.264 OF 2005
D'damas Jewellery India Pvt.
Ltd., a company incorporated
under the Companies Act,
1956 having its registered
office at Shabnam House,
Plot No.A-15/16, MIDC,
Central Cross Road - B,
Andheri (E), Mumbai -
400 093, through its
authorised representative
Mr. Krishnanand C. Kulkarni .... Petitioner
- Versus -
1. State of Maharashtra
2. Mr. Himanshu Kamlashankar
Thakar, D-502, Mahavir
Darshan Co-op. Housing
Society, Sector 2, RDP-1,
Plot No.2, Charkop,
Kandivali (W),
Mumbai - 400 067.
3. Mr. Rakesh L. Goda,
8/Tushar Co-op. Hsg. Society
Ltd., Datta Mandir Road,
Dahanukar Wadi, Kandivali
(W), Mumbai - 400 067. .... Respondents
Shri LeRoy Collaco i/b M/s. LeRoy Collaco
& Associates for the Petitioner.
Ms A.S. Pai, Addl. Public Prosecutor, for
the Respondent No.1.
Shri Satish S. Adsule for the Respondent
No.2.
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CORAM: Sri R.M.S. KHANDEPARKAR &
Smt. V.K. TAHILRAMANI, JJ.
DATED: JULY 15, 2008
JUDGMENT (Per Sri R.M.S.Khandeparkar, J.):
1. The point referred for consideration is whether each
and every order passed under Section 457 of the Code of
Criminal Procedure, 1973, hereinafter called as “the
Code” is to be considered as an interlocutory order.
2. We
have heard Shri LeRoy Collaco and Shri Satish
Adsule for the parties, as also we have heard Ms A.S.
Pai, amicus curaie on the above point arising for
consideration in the matter.
3. Chapter XXXIV of the Code deals with the subject of
disposal of property. Section 451 relates to the
matters pertaining to orders for custody and disposal of
property pending trial before the Criminal Court.
Section 452 refers to orders to be passed for disposal
of property at the conclusion of the trial. Section 457
relates to the procedure by the police upon seizure of
property. The sub-section (1) thereof reads thus:
“Whenever the seizure of property by any
police officer is reported to a
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[3]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.”
4. As the sub-title of the section suggests, the
provision under Section 457(1) of the Code would apply
to the cases when police seizes any property in the
course of investigation and which is not produced in the
Court, either during the inquiry or trial. In other
words, if the police in the course of investigation
takes in its possession any property belonging to any
person including the accused, but does not produce the
same before the Court, either in the course of inquiry
or trial, then the person entitled for possession of
such property can approach the Magistrate within whose
jurisdiction the property was seized to claim the
restoration thereof. When such person approaches the
Magistrate and in case the Magistrate upon consideration
of his application in that regard finds it appropriate
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to decide about the possession of such property, prior
to disposal, or even before commencement of, the trial,
than the concerned Magistrate can pass an order either
disposing the property or delivering such property to
the person entitled to the possession thereof. In the
cases where a person who is entitled to the possession
thereof cannot be ascertained, the Magistrate can pass
an appropriate order regarding the custody and
production of such property. In other words, if the
claimant of the property is unable to satisfy the
Magistrate that he is entitled for possession of the
property in
question, even in such a situation, the
Magistrate is empowered under Section 457(1) to pass
appropriate order for the purpose of custody and
production of such property whenever occasion arises for
the same. For that purpose, the Magistrate can entrust
the property to the applicant or any other person whom
the Magistrate thinks fit and proper.
5. Section 457(1) visualises three types of orders in
relation to the property seized by the police in the
course of investigation. The first type of order
relates to disposal of the property. Obviously, the
occasion for disposal would arise in cases where the
property is either of perishable nature or is of such a
nature which requires disposal thereof for any
justifiable reason. The second type of order relates to
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the delivery of the possession of the property for
proper custody and production thereof as and when
required. The third type of order relates to the
custody of the property in case where the person
entitled to possess is not ascertainable.
6. Three types of orders under Section 457(1) can be
passed in various eventualities. Occasion to pass an
order for disposal of property can arise in various
circumstances. It can be in a situation where the
property is subject to decay or may be of such a nature
that it cannot be retained in the same form or condition
beyond certain time or that the retention thereof is
either harmful to the public or the disposal thereof is
in the public interest. The second type of orders can
be in the circumstances when somebody approaches the
concerned Criminal Court claiming to be entitled to
possess such property. If the claimant in that regard
is able to satisfy the Court about his claim regarding
possession to the property, certainly the Court is
empowered to pass appropriate order in that regard
subject to conditions regarding production thereof in
the Court whenever required. The third eventuality can
also arise when the property is required to be kept in
custody of somebody to enable him to produce it in the
course of trial or inventory or whenever required by the
Court and at the same time, the person entitled to
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possess such property cannot be ascertained. In such
circumstances also the Court can pass appropriate order
for delivery of property to a person ready and willing
to produce the same as and when required by the Court
and subject to conditions to be specified by the Court.
7. Considering the ingredient of Section 457(1) of the
Code, it may appear to be the power invariably to be
exercised at the interim stage and, therefore, any order
passed in exercise of such power has to be an
interlocutory order. Undoubtedly, the term
“interlocutory”
igwill have to be understood with
reference to the expression used in that regard in
Section 397 of the Code. The sub-section (2) of Section
397 clearly debars the exercise of revisional power in
case of any interlocutory order passed by the Criminal
Court. Considering the same, can it be said that merely
because the power under Section 457(1) can be invoked
even before the disposal of inquiry or trial, every such
order passed thereunder would be an interlocutory order?
Can it be said that because the order to be passed under
Section 457(1) would relate to delivery of property in
the course of inquiry or trial, it would amount to an
interlocutory order? As seen above, the exercise of
power under Section 457(1) can be in three different
circumstances. Will such exercise of power irrespective
of the eventuality in which such power is exercised,
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would result in an interlocutory order?
8. As seen above, there are three eventualities
visualised for exercise of power under Section 457(1),
and one eventuality clearly refers to disposal of
property, while the other to delivery of the property
and the third one for custody. Once the property is
disposed of during the pendency of the trial or before
the conclusion of the trial, in our considered opinion,
any order resulting in disposal of property can hardly
be said to be an interlocutory order. Such an order
would automatically
ig result in final adjudication in
relation to the property ordered to be disposed of. The
disposal may also include destruction of the property.
In case the property is destroyed, nothing further
remains to be considered in relation to the property.
Obviously, therefore, any such order can, by no stretch
of imagination, be said to be an interlocutory order.
Such an order will put an end to all the rights or
interest in the property.
9. As regards the delivery of property to any person
entitled for possession thereof, it will stand on the
same footing as that of disposal of the property. In
case of such delivery of property, it would be only
after ascertaining the right of the person claiming to
be entitled to have possession of such property.
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Obviously, therefore, the Court will have to decide the
issue relating to the right to possess and accordingly
deliver the property to the person who is entitled to
possess the same. Being so, such an order deciding the
issue regarding right to possess the property cannot be
said to b an interlocutory order. For that purpose,
such an order would be amenable to revisional
jurisdiction under Section 397 of the Code.
10. As regards the third eventuality under Section 457
of the Code, the order in such an eventuality would be
only for custody
ig of the property during the trial,
subject to condition that the same should be produced at
any time required by the Court. Such an order would
certainly fall within the category of interlocutory
order as one cannot attach any finality to such an order
since it does not decide any right to the property nor
it implies any adjudication of any issue as such.
11. It is also to be clarified that while passing the
order in relation to the second eventuality i.e. to say
delivery of property to a person entitled to possess the
same, the Court is not forbidden from imposing
conditions in respect of production of such property
whenever required by the Court during the trial.
However, such a condition by itself would not amount to
nullify the effect of adjudication in relation to the
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issue pertaining to right to possess the property.
Being so, irrespective of any condition laid down for
production of the property while delivering the property
to the person entitled to possess, nevertheless the
order would be amenable to the revisional jurisdiction.
12. The point of reference, therefore, is answered
accordingly. The matter now is required to be placed
before the appropriate Bench of the learned single Judge
for decision on merits. Order accordingly.
(Smt.V.K.Tahilramani, J.) (R.M.S.Khandeparkar, J.)
sjs/rcwp1531.6
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