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Shamrao Sampatrao Khanderai v. State Of Maharashtra And Another

Bombay High Court

Feb 22, 1979

Judgment

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Summary of Legal Opinion — Gadgil, J.

Factual and Procedural Background

On 13-12-1976 a report was lodged by Baburao on behalf of his mother Lilabai (respondent No. 2) alleging that Ramrao Sampatrao Gawande committed theft of Lilabai's she-buffalo. Police investigation led to seizure of the she-buffalo from the possession of Shamrao (the applicant).

Shamrao filed an application on 18-12-1976 claiming that he had purchased the she-buffalo from Ramrao. On 22-12-1976 the Judicial Magistrate First Class, Akot, ordered that the she-buffalo be entrusted to Shamrao on condition that he would produce it when directed or pay a penalty of Rs. 1500.

Lilabai then applied for custody, alleging the purported sale to Shamrao was not bona fide (noting that Shamrao had allegedly bought it for Rs. 1500 whereas its price was Rs. 2500). After hearing the parties, the Magistrate on 5-12-1977 ordered that custody be given to Lilabai on her executing the necessary surety bond.

Shamrao challenged that order by way of Criminal Revision No. 68 of 1977 in the Sessions Court, Akola; the revision was dismissed on 19-5-1978. The present application under section 482 CrPC challenges the Magistrate's order returning custody to Lilabai and seeks exercise of this Court's inherent powers. An interim stay previously granted was later vacated by this Court. The Magistrate was directed to expedite Criminal Case No. 247 of 1977, and the parties were ordered to appear before the Judicial Magistrate First Class, Akot, on 5-3-1979.

Legal Issues Presented

Whether a Magistrate can modify an earlier order made under section 451 of the Code of Criminal Procedure (i.e., an order concerning custody of property pending trial), or whether such an order is a final order that cannot be reviewed by the same Magistrate.
Whether an order passed under section 451 which was made ex parte (or without hearing a party adversely affected) can be modified after the affected party is heard.
Whether this Court should exercise its inherent powers under section 482 CrPC to interfere with the Magistrate's order returning custody to the complainant.
On the merits, whether the applicant (Shamrao), who claims to have purchased the she-buffalo, has a superior claim to custody compared to the complainant (Lilabai).

Arguments of the Parties

Applicant (Shamrao)

Contended that after the Magistrate passed the order dated 22-12-1976 in his favour, the Magistrate had no jurisdiction to modify that order and could not review his own order; the proper remedy for an aggrieved party was revision.
Relied upon the decision of the Calcutta High Court in The State v. Sova Rani (1973 Cr. L.J 784) to support the proposition that a final order cannot be altered by the Court that made it.
On merits, asserted he had a better claim because he alleged he had purchased the she-buffalo from the owner Ramrao.

Respondent (Lilabai)

Maintained that the alleged purchase by Shamrao was not bona fide — pointing to a disparity in price (alleged purchase price Rs. 1500 vs. market price Rs. 2500) — and sought custody of the seized she-buffalo.
After the police initially handed the she-buffalo to Lilabai on bond, she sought restoration of that custody and applied to the Magistrate when the earlier order had been made in favour of Shamrao without hearing her.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
The State v. Sova Rani (1973 Cr. L.J 784)	Distinction between interlocutory and final orders; a final order (even if not a judgment) cannot be reviewed or altered by the same Court which passed it.	The Court considered this authority but held it inapplicable because the order in the present case was under section 451 (custody pending trial) and thus interlocutory, not a final order; therefore the Calcutta High Court's restriction on modification of final orders did not govern the present facts.
Ramchetsing Arjunsing v. Deoji Kalyanji (AIR 1942 Bom 42)	Orders under the old section 516A (equivalent to current section 451) are interim; ex parte interim orders are subject to variation, vacation or confirmation after hearing parties.	The Court relied on this decision to emphasize that custody orders pending trial are not final and that ex parte orders can be modified after hearing the affected parties.
Basappa v. State of Karnataka (1977 Cri. L.J 1541)	Holds that an ex parte order under section 451 CrPC can be modified after hearing the parties adversely affected by it.	The Court cited Basappa to support the proposition that modification of an ex parte custody order under section 451 is permissible once the affected party is heard.
State Bank of India v. Rejendra Kumar (AIR 1969 SC 401)	Although statute may be silent about notice or hearing, there is a necessary implication that parties adversely affected should be heard before return/disposal of seized property.	The Court relied on this Supreme Court principle to underscore the necessity of hearing affected parties before making an order final as regards a particular Court in property custody/disposal matters.

Court's Reasoning and Analysis

The Court approached the matter by focusing on the nature of orders made under section 451 CrPC (custody and disposal of property pending trial). It determined that:

Section 451 deals with custody of property produced before a Criminal Court during inquiry or trial and is aimed at securing custody pending conclusion of the inquiry or trial. Therefore such orders are, by their nature, interlocutory rather than final.
The Court distinguished The State v. Sova Rani, which dealt with a final disposal order and held that final orders cannot be reviewed by the same Magistrate. Because the present order under section 451 is interlocutory, that prohibition does not apply here.
The Court considered the practical and logical consequences of treating section 451 orders as final and found that such a position would be anomalous. It gave the example of routine initial custody placements (e.g., with a police-patil) that might later properly be changed when parties appear and the Court hears their claims.
The Court relied on Ramchetsing Arjunsing (equivalent earlier provision) to show authority that ex parte interim custody orders are subject to variation or confirmation after hearing parties; hence modification is permissible.
The Court rejected the submission that the fact the Police Prosecutor was heard means that all concerned parties were heard. It emphasized that an affected private party (here, respondent No. 2 Lilabai) must be heard and that the earlier order dated 22-12-1976 had been passed without hearing her. The Magistrate's subsequent modification followed her application and was therefore a reconsideration after hearing the concerned party rather than an impermissible review of a final order.
The Court also cited Basappa and the Supreme Court decision in State Bank of India v. Rejendra Kumar to reinforce the principle that, even where the statute is silent, there is a necessary implication that adversely affected parties should be heard before property is returned or a custody order is made final as regards that Court.
On the substantive claim to custody, the Court declined to make a final determination (for instance, declaring the she-buffalo must be returned to the applicant at the close of trial), observing that the ultimate order after trial would depend on various factors and should be decided by the Magistrate after trial.
Finally, addressing the applicant's invocation of the Court's inherent powers under section 482 CrPC, the Court reiterated that such powers are to be exercised sparingly and concluded that the applicant had not made out a case to justify interference with the Magistrate's order.

Holding and Implications

Holding: Application dismissed.

Implications and direct effects:

The Magistrate's order of 5-12-1977 directing that custody of the she-buffalo be given to Lilabai upon her executing the requisite bond stands; the High Court declined to exercise its inherent powers under section 482 CrPC to disturb that order.
The interim stay previously granted by this Court was vacated.
The learned Judicial Magistrate was directed to, as far as possible, expedite the hearing of Criminal Case No. 247 of 1977.
The parties were ordered to appear before the Judicial Magistrate First Class, Akot, on 5-3-1979.
No substantive final determination was made by this Court on the ultimate ownership or entitlement to the she-buffalo at the close of trial; the Court expressly refrained from resolving that issue and left it to the Magistrate post-trial.
The opinion does not purport to lay down a new precedent beyond applying and reconciling existing authorities on the interlocutory nature of section 451 custody orders and the necessity to hear adversely affected parties; the Court emphasized that inherent powers under section 482 should be exercised sparingly and found no ground to do so here.

Order Pronounced: Application dismissed. (The printed order concludes: "Application dismissed.")

Show all summary ...

Gadgil, J.:— The applicant has filed this application under section 482 of the Code of Criminal Procedure challenging the order of the Judicial Magistrate First Class, Akot, in Criminal Case No. 247 of 1977 whereunder the Magistrate has directed that the custody of the she-buffalo in question should be given to the complainant (Lilabai) in that case on her executing the requisite bond that the complainant would produce the she-buffalo whenever directed by the Court.

2. In order to understand the alleged grievance of the applicant, it will be necessary to state a few facts. On 13-12-1976 Baburao, acting on behalf of his mother Lilabai (present respondent No. 2), filed a report with the police alleging that Ramrao Sampatrao Gawande has committed theft of the she-buffalo belonging to Lilabai. On the basis of that complaint the police started investigation. The she-buffalo in question was seized from the possession of the present applicant Shamrao. The question arose before the Magistrate as to whom the custody of the she-buffalo should be given. Shamrao filed an application on 18-12-1976 praying that the custody of the she-buffalo be given to him. He contended in that application that he had purchased the she-buffalo from Ramrao Gawande. On that application the Magistrate passed an order dated 22-12-1976 that the she-buffalo should be entrusted to Shamrao on the condition that he would produce it whenever directed or would pay a penalty of Rs. 1500. Thereafter respondent No. 2 Lilabai filed an application requesting the Court that the custody of the she-buffalo should be made over to her. She contended that Shamrao bad alleged that he had purchased the she-buffalo for Rs. 1500 when its price was Rs. 2500. She also contended that the transaction thus is not of a bona fide nature at all. The learned Judicial Magistrate, after hearing Lilabai as well as Shamrao, passed an order on 5-12-1977 that the she-buffalo should be given in the custody of Lilabai on her executing the necessary surety bond.

3. The above order was challenged by Shamrao in the Sessions Court, Akola, in Criminal Revision No. 68 of 1977. The said revision was dismissed on 19-5-1978 and hence this application.

4. It was contended on behalf of applicant Shamrao that the Magistrate, after having passed the order dated 22-12-1976 in favour of the applicant, had no jurisdiction to modify the order by directing that the custody of the she-buffalo should be with Lilabai. It was urged that the Magistrate has no power to review his own order and that the only remedy of an aggrieved party is to go in revision against that order. Reliance is placed on the decision of the Calcutta High Court in the case of The State v. Sova Rani . 1973 Cr. L.J 784.. In that case, certain rice was attached from one Chakrabarty on the ground that it was concerned in an offence of smuggling. Before the case proceeded till its conclusion Chakrabarty died. The Magistrate, therefore, passed an order dated 31-3-1969 that the rice be confiscated to the State. On 5-1-1970 the widow of Chakrabarty made an application to that Court that the rice should be returned to her. The Magistrate granted the application. The State took the matter in revision to the Sessions Court. That Court made a reference to the High Court. The proceedings had finally come to an end as the case against Chakrabarty abated on account of his death. The Calcutta High Court, therefore, held that the order of disposal dated 31-3-1969 was a final order and as such the Magistrate had no jurisdiction to review such a final order. We do not think that this case can be of any use to the applicant. The Calcutta High Court has made a distinction between an interlocutory order and a final order. This is what is observed in the judgment:

“The question is, can a Court set aside or review its own order which does not amount to a judgment? In this case a distinction has to be made between an interlocutory order and a final order. In respect of a final order which does not amount to a judgment in a trial section 369 of the Code of Criminal Procedure would not in terms apply, but the general principles on which the section is based would be applicable and such final order cannot be altered or reviewed by the Court which passed it or by any other Court of co-ordinate jurisdiction ….”

The order before the Calcutta High Court was a final order and it is this order that was modified by the same Magistrate. Such modification was held to be not permissible.

5. In the present case, the order is not a final one. It is passed under section 451 of the Code of Criminal Procedure. That section deals with the custody and the disposal of property pending trial. It says that when 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. Mr. Mohta submitted that though the order is passed about the custody pending trial, still that order would be final and the same Magistrate cannot modify it. We are not able to accept this contention. On the face of it, the purpose of section 451 is to direct the custody of the property till the case is decided. Such an order would obviously be an interlocutory order. Secondly, the position would be somewhat anomalous if the order is treated to be a final order as alleged by Mr. Mohta. Let us take an instance where the Magistrate, as soon as the police produce a she-buffalo or a cow or a goat before the Magistrate, passes an order that such animal should be kept in the custody of the police-patil. After this order is passed, the complainant as well as the accused appear before the Court with an allegation that it would be in the interest of justice that the custody should be not with the police-patil but that it should be either with the complainant or the accused. A prayer to that effect is made. Would it be correct to say that the Magistrate has no jurisdiction to pass an order directing that the animal which was kept in the custody of the police-patil should be given to the custody either of the complainant or of the accused? We do not think that this can be the position.

6. The nature of an order passed under section 451 has been considered by this Court in the case of Ramchetsing Arjunsing…Accused; v. Deoji Kalyanji…Complainant. . AIR 1942 Bom. 42.. It was a case under section 516A of the old Code of Criminal Procedure, 1898. That section is equivalent to the new section 451. A complaint was made about the breach of trust of the she-buffaloes. The police attached the she-buffaloes and the Magistrate passed an order that they be handed over to the complainant on his executing the requisite bond. The accused thereafter applied to the Court alleging that the said order should be modified and the custody should be given to him. The Magistrate did not grant that prayer. The matter came up to the High Court in revision. The nature of the order that is passed for the custody of the property pending trial was considered in that case in the following words:

“The record, however, does not suggest that the parties had been heard on 28th April and the form of the Magistrate's order is not consistent with the view that he was merely confirming his previous order after hearing the parties. He said in so many words that it was not necessary to pass any orders at all on the application made by the accused on 18th April and his view appears to have been that it was open to him to make an ex parte order, such as the order complained of on 16th April and that order must be regarded as final pending the decision of the case. We think it necessary to point out emphatically that there is no warrant at all for any such view. It may be that circumstances of urgency may necessitate the passing of ex parte orders, but orders passed in that way can only be interim orders subject to vacation or variation or confirmation after hearing the parties concerned”.

The order in the present proceedings was passed by the Magistrate after hearing the Police Prosecutor. It was, therefore, submitted by Mr. Mohta that the order would not be an ex parte order and the present respondent No. 2 would not have any right to ask for its modification. The fact that the Police Prosecutor was heard would not in every case mean that the order was passed after hearing all the concerned parties. In the present case, it is respondent No. 2 who is primarily concerned with the order about the custody of the she-buffalo pending inquiry. The fact that Police Prosecutor was heard cannot be a circumstance from which a presumption can be drawn that respondent No. 2 was heard. Thus, here is a case where the order dated 22-12-1976 was passed by the Magistrate without hearing respondent No. 2. The said order has been modified after respondent No. 2 made an application and placed her claim before the Court. We think that the modification of the order dated 22-12-1976 would not be a review of the order. It would be passing an appropriate order after hearing the concerned parties. Hence the principle that the Magistrate has no power to review his own order is not applicable when the Magistrate reconsiders his order previously passed under section 451 of the Code of Criminal Procedure.

7. The question had arisen before the Karnataka High Court in the case of Basappa v. State of Karnataka . 1977 Cri. L.J 1541., wherein it is laid down that an ex parte order passed under section 451 of the Code of Criminal Procedure can be modified after hearing the party or parties adversely affected by the said ex parte order. The necessity of hearing the concerned parties is also considered by the Supreme Court in the case of State Bank of India v. Rejendra Kumar . AIR 1969 SC 401.. There the order about the disposal of the property was challenged and the Supreme Court held as follows:

“It is true that the statute does not expressly require a notice to be issued or a hearing to be given to the parties adversely affected. But though the statute is silent and does not expressly require issue of any notice, there is in the eye of law a necessary implication that the parties adversely affected should be heard before the Court makes an order of return of the seized property”.

Thus, in order to make an order final as far as a particular Court is concerned it would usually be necessary that the concerned parties are heard. Of course, we need not consider this aspect in detail, particularly when in the present case the impugned order is about the custody of the property pending trial and as discussed above, such an order is liable to modification if the previous order is an ex parte order.

8. It was next urged that even on merits the applicant has a better claim for the custody of the she-buffalo. We have already observed that according to him he has purchased the she-buffalo from the owner Ramrao. Lilabai has challenged the transaction by saying that the said purchase does not appear to be a bona fide one. We may also note that immediately after the seizure of the she-buffalo by the police, the police had initially handed over the she-buffalo to Lilabai on her executing a bond. It is this order that was later on modified by the Magistrate without hearing Lilabai. The question as to what order is likely to be passed after the termination of the trial would depend upon various factors. It will not be possible for Mr. Mohta to contend that at the close of the trial the she-buffalo will have to be returned to the applicant. We are not ready to go into this question as an appropriate order will be passed by the Magistrate after the trial is over.

9. The rusult, therefore, is that the learned Magistrate has passed an order about the custody of the she-buffalo in favour of respondent No. 2. It is this order that is being challenged by making an application under section 482 of the Code of Criminal Procedure for the exercise of the inherent powers of this Court. Inherent powers would normally be exercised very sparingly. We do not think that the applicant has made out any case for such exercise. The application is, therefore, dismissed. The interim stay granted by this Court stands vacated. The learned Judicial Magistrate would, as far as possible, expedite the hearing of Criminal Case No. 247 of 1977.

10. The parties to appear before the Judicial Magistrate First Class, Akot, on 5-3-1979.

Application dismissed.