Mohd. Saleem vs Ashwani Kumar And Another

Heard.

Petitioner has filed the present petition under Section 561-A Cr.P.C. for seeking quashment of the following:-

(i) FIR No.163/2016 Police Station, Bakshi Nagar, Jammu.

(ii) Order dated 07.11.2016 passed in Misc. File No.741 titled Ashwani Bhasin vs. State vide which the Santro Car of the petitioner has been released and given on Supurdnama of respondent No.1.

(iii) Order dated 15.12.2016 passed in File No.138/Misc. titled, Salim Manhas vs. State passed by the learned Judicial Magistrate (Forest Magistrate), Jammu.

(iv) Order dated 15.04.2017 passed by the learned Additional Sessions Judge, Jammu passed in Cr. Rev. No. 81/2016 titled, Mohd. Salim Manhas vs. State.

In this petition, it has been stated that he is registered owner of a Santro Car bearing registration No. JK02AW-0208, Chasis No.MALAA51HLCM7460058 Engine No. G4HGCM-443586, having white color. The said car was financed by the HDFC Bank Ltd. Jammu as the same was hypothecated and the petitioner was paying the requisite installments and there is no complaint or dispute with the said Bank. That way back in the month of May, 2013, respondent No.1 gave an offer for the exchange of the said vehicle with his vehicle which was Swift alongwith some cash. In this proposed transaction, no doubt, some steps were taken but the said proposal could not mature because of the ill and dilatory intentions of the respondent and thus the proposal given by respondent No.1 was rejected. The wife of the petitioner, namely, Shazia Amin had parked the said Santro Car bearing Registration No.JK02AW-0208 inside the Govt. Dak Banglow in Poonch City and it was stolen along with its papers as well as Cash amount of Rs.26,000/-. The wife of the petitioner went to Police Station for lodging the report of theft in respect of the car, but the Police for reasons best known to them did not show any promptness in the matter. Thereafter on opening of the Court, the wife of the petitioner at about 10:30 AM on 03.10.2016 submitted her application before the Court of learned Chief Judicial Magistrate, Poonch requesting therein that the Court may direct the Police to initiate action under law. The learned Chief Judicial Magistrate, Poonch endorsed the said application to SHO, Police Station Poonch for investigation under law.

It has further been stated that the SHO Police Station, Poonch, though required under law did not register the FIR promptly but on 04.10.2016 submitted a report in the Court of learned Chief Judicial Magistrate, Poonch stating therein that an FIR No.163 of 2016 under Section 379 RPC has already been registered in Police Station, Bakshi Nagar, Jammu, who had seized the said Santro Car in question without the knowledge of petitioner, the real owner of car in question. The respondent No.1 on 07.11.2016 filed an application before the learned City Judge, Jammu for the release of the said vehicle. The City Judge Jammu, without ascertaining as to who is the real owner of the car, released the car in favour of respondent No.1 on supurdnana. That order of the Magistrate was illegal because the petitioner was the registered owner of the vehicle and thereafter the petitioner had filed a petition under 561-A Cr.P.C. being Cr.M.C. No. 629/2016 which was considered and disposed of thereby directing to re-consider the matter for release of vehicle after affording an opportunity of being heard to the petitioner. Thereafter, the learned JMIC (Forest Magistrate), Jammu has dismissed the application of the petitioner for release of the vehicle in his favour on the ground that the petitioner could not make out a strong prima facie case and supurdari of the vehicle is allowed to be continued with respondent No.1.

The petitioner being aggrieved of the order dated 15.12.2016 has filed the revision petition before the Court of learned Sessions Judge, Jammu who transferred the case to the learned Additional Sessions Judge, Jammu and the learned Additional Sessions Judge, Jammu vide order dated 15.04.2017 has dismissed the revision petition. Petitioner has challenged both the orders on the ground that the same are not according to law. Petitioner is owner of the vehicle in question i.e., Santro Car, therefore, he is entitled for release of the same in his favour.

I have considered the rival contentions of learned counsel for the petitioner.

The impugned order of revisional Court reads as under:-

" Now, by virtue of revision petition on hand, petitioner assailed the order impugned by contesting on facts, that despite he being registered owner, learned Magistrate, still released the vehicle in favour of respondent No. 2.

It is the important to note that under Section 435 (2) Cr.P.C., there is a specific bar to exercise revisional power in relation of any interlocutory order passed in appeal, trial or other proceedings.

Now, core point arises as to whether or not the order assailed by the petitioner whereby interim custody of the vehicle in question is given to respondent No. 2, can be assailed by invoking revision jurisdiction of this Court.

The point under consideration is no more res integra, Hon'ble High Court in, GH. Mohd. Sheikh and anr Vs. State through SHO Police Station Soura (2005) (3) JKJ 356, in similar facts and circumstances held as follows;

The impugned order is interlocutory one and no revision is competent against the same. This court has held that if a seized vehicle/property is released on superdnama, that order is purely an interlocutory order. The said judgment is reported in SLJ 1981 page 205 Mohd. Gulzar v. Charangjeet and Anr. The subordinate criminal courts have powers to modify, alter or vary the interlocutory orders till final orders are passed for the following reasons;- Section 369 Cr.P.C. mandates that court cannot alter the judgment. Section 369 Cr.P.C. reads as under;

" 369. Court not to alter judgment.-Save as otherwise provided by this Code or by any other law for the time being in force, or in the case of High Court, by the constitution of High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error."

Hon'ble High Court of Jammu and Kashmir has also held in a judgment reported in KLJ 1987, page 712, Naranjan Kour v. State of J&K & Ors., that the courts have powers to alter or modify the interim order at any stage. It is profitable to reproduce para-6 of the judgment herein;-

"6. On its plain reading the bar contained in Sec.369 Cr.P.C. operates only against a judgment and does not extend to interim or interlocutory orders. Orders which are of purely interim and temporary nature and do not decide or touch the important rights of the parties, cannot be termed as a judgment. It is well settled that orders, for instance, of summoning witnesses, adjourning cases, calling reports and for taking such other steps in aid of the pending proceedings are merely interlocutory orders and not judgments. Therefore, the bar on the courts to review or alter its own judgments under Section 369 Cr.P.C. cannot extend to interlocutory orders."

Viewed thus the subordinate criminal court has powers to modify or alter the orders which are not final but are purely interim or interlocutory in nature.

In view of settled preposition of law, the order passed by learned Magistrate in exercise of power under Section 523,Cr.P.C., necessarily, is an interlocutory order, which came to be passed to preserve the property, pending investigation/trial and it is only on conclusion of trial, the final order as to entitlement of property can be passed.

On coming across the position of law, I am of the considered opinion that instant revision petition is not maintainable, however, parties, if so advised, can approach learned Magistrate, with all available pleas, including the one taken before this Court.

For all what has been discussed herein above, it is held that revision petition is not maintainable and same is dismissed. Interim orders, if any, stand vacated. Record be send down, along with copy of this order. File be consigned to records after due completion."

From bare perusal of order dated 15.12.2016 passed by JMIC, it is evident that, it does not suffer from any infirmity of law and facts, because from the perusal of order dated 15.12.016 of JMIC City Judge, Jammu, it is evident that vehicle in question has been kept on superdnama by way of interim custody in favour of respondent, as JMIC has held that respondent was bona fide owner of vehicle though registered documents were on the name of petitioner herein. JMIC has passed this order after hearing the petitioner herein as per direction of this court passed in 561-A Cr.P.C 629/2016 dated 29.11.2016. Similarly order of Additional Sessions Judge Jammu also does not suffer from any infirmity of law as revision against interim order is not maintainable in terms of section 435(2) Cr.P.C.

Law is further clear that interim order is always subject to modification /cancellation/ alteration.

In Gh. Mohammad Sheikh And Anr. vs State Through S.H.O. Police Station Soura reported in 2005 (3) JKJ 356, it is held as under:-

"11. The impugned order is interlocutory one and no revision is competent against the same. This court has held that if a seized vehicle/property is released on superdnama, that order is purely an interlocutory order. The said judgment is reported in SLJ 1981 page 205 Mohd. Gulzar v. Charangjeet and Anr. The subordinate criminal courts have powers to modify, alter or vary the interlocutory orders till final orders are passed for the following reasons;- Section 369 Cr.P.C mandates that court cannot alter the judgment. Section 369 Cr.P.C. reads as under;-

"369. Court not to alter judgment. -- Save as otherwise provided by this Code or by any other law for the time being in force, or in the case of High Court, by the constitution of High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error."

While reading this provision of law, the bar contained in Section 369 Cr.P.C. operates only against a judgment and does not apply to interim or interlocutory order. My this view is fortified by a judgment of the Division Bench of this Court in Mirza Mohd. Afzal Beg and Ors. v. State of J&K and Ors. AIR 1960 J&K page 1.

Hon'ble High Court of Jammu and Kashmir has also held in a judgment reported in KLJ1987, page 712, Naranjan Kour v. State of J&K & Ors., that the courts have powers to alter or modify the interim order at any stage. It is profitable to reproduce para-6 of the judgment herein;-

"6. On its plain reading the bar contained in Section 369 Cr.P.C. operates only against a judgment and does not extend to interim or interlocutory orders. Orders which are of purely interim and temporary nature and do not decide or touch the important rights of the parties, cannot be termed as a judgment. It is well settled that orders, for instance, of summoning witnesses, adjourning cases, calling reports and for taking such other steps in aid of the pending proceedings are merely interlocutory orders and not judgments. Therefore, the bar on the courts to review or alter its own judgments under Section 369Cr.P.C. cannot extend to interlocutory orders."

Viewed thus the subordinate criminal court has powers to modify or alter the orders which are not final but are purely interim or interlocutory in nature."

By passing the impugned orders, both the courts below have not abused the process of law or exceeded the jurisdiction vested in them. Further petitioner has raised disputed questions of facts with regard to title on vehicle in question, which this court cannot adjudicate upon in this petition. Petitioner has remedy to file civil suit for declaring him as owner of vehicle.

In view of above, this petition is dismissed.