Allowed

Kapur Ganjhu v. the State of Jharkhand

Jharkhand HC5 Feb 2024Cr.M.P./2928/2022

Case brief

AI extract

What is this about?

In an NDPS case, Sessions Judge rejected release of seized motorcycle citing lack of insurance and pending investigation. Petitioner claimed maintenance of Section 482 CrPC appeal was barred as order was interlocutory. This Court held Section 451 CrPC orders are revisable and allowed the petition, quashing the rejection order and allowing fresh application with valid insurance.

What did the court decide?

Order dated 28.02.2022 is quashed; liberty granted to petitioner to file fresh application for vehicle release with valid insurance policy.

Kapur Ganjhu Vs the State of Jharkhand — Narcotics (NDPS) | Jharkhand HC (2024)

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1 Cr.M.P. No.2928 of 2022

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2928 of 2022

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Kapur Ganjhu, aged about 28 years, son of Tufani Ganjhu, resident of Village- Bhabrahi Postiya, P.O.- Bashistanagar, P.S.- Bashistanagar, Dist.- Chatra

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.... Petitioner

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Versus

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The State of Jharkhand

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…. Opp. Party

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Petitioner : Mr. Anupam Anand, Advocate For the State : Mr. V.K. Vashistha, Spl. P.P.

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By the Court:-

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Heard the parties.

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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-cumSpecial 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.

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2 Cr.M.P. No.2928 of 2022

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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.

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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.

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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

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Cr.M.P. No.2928 of 2022

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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.

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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:-

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“10. At para.15 of the aforesaid Madras High Court judgment, it is held as follows:

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"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

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Cr.M.P. No.2928 of 2022

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Cr.P.C. cannot be essentially an interlocutory order and therefore, Section 397(2) of Cr.P.C. is not attracted."

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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.

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12. Therefore, in view of the aforesaid legal position, this Criminal Petition filed under Section 482 Cr.P.C. is not maintainable.”

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It is submitted by learned Spl. P.P. that order under Section 451 of Code of Criminal Procedure is not interlocutory order.

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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:-

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“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.”

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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:-

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“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

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Cr.M.P. No.2928 of 2022

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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.”

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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:-

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“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

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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.”

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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:-

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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.”

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and submits that this criminal miscellaneous petition being not maintainable, the same be dismissed.

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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:-

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Cr.M.P. No.2928 of 2022

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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.

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Explanation.—For the purposes of this section, “property” includes—

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(a) property of any kind or document which is produced before the Court or which is in its custody,

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(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.”

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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.

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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.

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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

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Cr.M.P. No.2928 of 2022

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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.

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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.

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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:-

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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

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Cr.M.P. No.2928 of 2022

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would simply reiterate that Section 482 begins with a non obstante clause to state:

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“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.”

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A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J.

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“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)

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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.”

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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:-

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“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

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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.

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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)

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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:-

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“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)

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Under such circumstances, this Court is of the considered view that there is no merit in the contention of the learned Special Public

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Prosecutor that this criminal miscellaneous petition is to be dismissed for being not maintainable.

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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 sinequa-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.

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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.

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12 Cr.M.P. No.2928 of 2022

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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.

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In the result, this criminal miscellaneous petition is allowed.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated the 5^th February, 2024 AFR/Sonu-Gunjan/-

Kapur Ganjhu v. the State of Jharkhand

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What is this about?

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Kapur Ganjhu v. the State of Jharkhand

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