- (1.) S. K. Phaujdar, J. Although the cases are different on facts, a common point arises in both of them and on that common point the present order is being recorded which will cover both these mat ters.
(2.) CRL. Misc. Application 2688of 1998 has been filed against an order of release of a truck which is being claimed by the present applicant and which was detained in case Crime No. 204 of 1998 under Sec tion 406, IPC, P. S. Mughal Sarai, District Chanduali. Learned CJM, Varanasi, was approached for an order of release and he by his order dated 16-7-1998, purportedly in exercise of powers under Section 457, Cr. P. C. had rejected the prayer. In Crl. Misc. Application 2694 of 1998 also it is a question of release of a DBBL gun which was seized in connection with case Crime No. 392 of 1997 under Sections 364-A and 368, IPC relating to P. S. Kotwali, Shamli, District Muzaf-farnager. The prayer for release of a truck as was made was rejected by the learned CJM, Muzaffarnagar on 4-7-98. The common question that arises in these two cases is whether the applicants in both the cases should have invoked the revisional jurisdiction of the court and not the inherent powers to seek the relief they have prayed for. It was argued that Section 482, Cr. P. C. gives ample power to the High Court to redress a wrong and "nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court. " The only concern of the High Court in exercising this jurisdiction, it was argued, was to see if it was necessary to give effect to any order under the Cr. P. C. or to prevent abuse of the process of any court or otherwise to secure the ends of justice. When a prayer is made under Section 457, Cr. P. C. before a court and an order is made either directing or refusing delivery of pos session of the property to any party, the order must be deemed to be affecting the right of a party and, as such, not an inter locutory order, though recorded at an in terlocutory stage. The language of Section 457 may be seen. This power could be exercised when seizure of a property by a police officer is reported to a magistrate under the provisions of this Code and the property is not produced before the criminal court. Upon these conditions, the Magistrate is authorised to make such order as he thinks fit respecting disposal of such property or the delivery of such property to the person entitled to the pos session thereof and if such persons cannot be ascertain respecting the custody and productioned of such property. Once the persons so entitled to know the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate would think fit. The very lan guage of Section 457, Cr. P. C. requires that the Magistrate is to go to the question of entitlement of possession of a particular property and thus he is required to take a decision on the right of a party either this way or the other. There could not be, therefore, any doubt that an order recorded under Section 457, Cr. P. C, even though with any condition, is not an inter locutory order and, as such, open to the revisional jurisdiction of the sessions court or the High Court.
(3.) LEARNED Counsels submitted that mere presence of a right to agitate the revisional jurisdiction cannot be a ground for not exercising the right to invoke the inherent powers of this Court. On this point, two decisions were cited before me. In a case of Brijendra Nath Agarwal and Pharmed Pvt. Ltd. , 1982 (19) ACC 84, an Hon'ble judge of this High Court had been dealing with an application under Section 482, Cr. P. C. An order was made in a complaint case for search and seizure of the premises of the accused, and it was urged that the direction of search was violative of Article 20 of the Constitution of India and was against the provisions of the Code of Criminal Procedure. The Court found that there had been an earlier application under Section 482, Cr. P. C. which was rejected and it was held that although the principles of resjudicata were inapplicable to criminal proceedings as such, but when inherent powers of the courts were invoked to undo any abuse of the process of law, it was desirable that all the grounds should be taken and the mat ter should not be agitated again and again by a number of applications under Section 482. Cr. P. C. taking one ground after another in succession as that would itself amount to an abuse of the process of law. The application stood dismissed. How ever, an observation was made, "i may also observe that for exercising the inherent powers, there may not be a bar that any revision could be filed or has not been filed or it has been rejected and in suitable places such powers can also be exercised. From a reading of the whole judgment it appears that the observations under quotation was merely an obiter dicta as the observation was not made to meet any point agitated in the application under Section 482, Cr. P. C.;