Under which circumstances, order of disposal of property during pendency of criminal trial will be final order or interlocutory order?

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 curiae 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 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 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 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 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” will 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, 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 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. 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 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 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.