1 WP-2106-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL WRIT PETITION NO. 2106 OF 2009 Aruna Ramkrishna Bhatkar ) Age 51 years, Occ: Housewife, ) R/at 220/8595, Kannamwar Nagar ) Vikhroli (E), Mumbai 400 083. ).. Petitioner Vs. 1. The State of Maharashtra ) 2. Shubhda @ Neelam Avadhut Bhatkar ) Age 32 years, Occ. R/at Chandrakant ) Patil, 44/471, Gujrat Hsg. Board, ) 1, Shasrinagar, Surat 395 002. ).. Respondents Mr. Ganesh Gole, Advocate, for the petitioner. Ms. A.T.Javeri, APP, for the respondent respondent No.1. Mr. Niyaz Ahmed, Advocate, for respondent No.2. CORAM: J.H.BHATIA,J. DATE : 19th July, 2010. JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties. 2. On 24.3.2006, the respondent No.2 was married to son of the petitioner. For some time they lived together. Thereafter, relations got strained. The respondent No.2 left the house. Later on, when the petitioner required the 2 WP-2106-09.sxw ornaments for some marriage function, she opened the cupboard and found that the ornaments consisting of one Mangal Sutra, four pieces of bangles and two pieces of Patlia were missing. She told her son and on enquiry from the respondent No.2, who was living at Surat at that time, it was confirmed that she had taken away the said ornaments at the instance and advice of her sister and brother-in-law. The ornaments were worth Rs.1,03,970/-. The petitioner- complainant lodged a report at the Police Station on 19.7.2008. On the basis of that FIR, police registered the offence, being M.E.C.R. No.05/08 under sections 406,506,504, 507 read with Sec. 34 IPC. Police seized ornaments from the respondent No.2. The petitioner filed an application before the Metropolitan Magistrate for return of the property to her. That application was opposed by the respondent No.2. The petitioner produced xerox copies of the bills under which she had purchased those ornaments while the respondent No.2 could not produce any document in support of her claim. She contended that the ornaments were given to her as Stridhan in marriage. After hearing the parties, the learned Magistrate, without deciding the question of ownership or title, passed the order dated 16.2.2009 and granted interim custody of the ornaments to the petitioner on certain conditions, including execution of indemnity bond, not to dispose of and not to alter and to keep the ornaments intact and to produce before the Court as and when required. 3 WP-2106-09.sxw 3. That order was challenged by the respondent No.2 in Criminal Revision Application No.798 of 2009. The Revision Application was allowed by the Sessions Court and while setting aside the order passed by the Magistrate, the learned Additional Sessions Judge directed that ornaments be handed over to the respondent No.2 on her executing Supurtnama with other similar conditions. The learned Additional Sessions Judge held that prima facie, the ornaments are Stridhan. That order is challenged in the present Petition. 4. The learned Counsel for the petitioner contended that firstly, the order passed by the Magistrate was interlocutory order and therefore, no revision application would be tenable in view of the provisions of sec. 397(2) Cr.P.C. Secondly, he contends that the petitioner being owner of the property in view of the documentary evidence, was best suited for the interim custody. On the other hand, the learned Counsel for the respondent No.2 contended that the ornaments being Stridhan of the respondent No.2, as could be seen from the photographs taken at the time of marriage, she is owner and therefore, the Sessions court was justified in passing the impugned order. He relied upon the Judgment of the Punjab & Haryana High Court in Ranjit Kaur vs. Atam Singh 1992 (2) cri.L.J. 527. That was a case for quashing the proceedings in a complaint under Sec. 406. 4 WP-2106-09.sxw The Punjab & Haryana High Court held that ornaments given to the daughter-in- law as gift at the marriage are her Stridhan and she is the owner of the property. In fact, in that case, the question was finally decided that the property was Stridhan of the daughter-in-law as it was given as a gift in marriage to her. In the present case, that stage has not yet reached and the evidence of the parties is yet to be recorded. According to the petitioner, the ornaments were purchased by her in her own name in the year 2004 and she is the owner of the same. On the other hand, the respondent No.2 has no document except the photograph showing that she was wearing the ornaments at the time of marriage. On the basis of the photograph, it cannot be decided whether the ornaments were given to her as marriage gift or they were simply given to her for use at the time of marriage. 5. The learned Counsel for the petitioner in support of his contention that revision application would not lie, placed reliance upon the Division Bench authority of this Court in D'damas Jewellery India Pvt. Ltd. vs. State of Maharashtra & Ors. 2008(2) Bom.C.R. (Cri) 381. The Division Bench of this Court had held that there could be three different eventualities and depending upon the facts of each case, it will have to be found whether the order was final or interlocutory. The Division Bench observed thus in paras 8,9 and 10 : 5 WP-2106-09.sxw "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 iterlocutory 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 6 WP-2106-09.sxw an order deciding the issue regarding right to possess the property cannot be said to be 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." 6. From these observations, it is clear that when the order is passed only for custody of the property during the trial subject to the condition that same should be produced at any time required by the Court, such an order would fall in the category of interlocutory order as no finality can be attached to such a decision because the right to property is not adjudicated in the matter. On perusal of the order passed by the Magistrate, it appears that the learned Magistrate had stated in so many words that he was not deciding the ownership of the gold ornaments, but was deciding the aspect of only interim custody 7 WP-2106-09.sxw to avoid damage to the same if allowed to remain at the police station and in the operative part of the order, he made it clear that it as for interim custody pending the case and the ornaments were to be given to the petitioner on her executing indemnity bond with directions as stated earlier. In view of the nature of the order, I am of the clear opinion that the order falls in the third eventuality as envisaged by the Division Bench of this Court in D'damas Jewellery India Pvt.Ltd. (supra) and therefore the order being interlocutory, revision under Sec. 397 Cr.P.C. would not lie. 7. Besides the legal aspect, prima facie, there was documentary evidence to show that the petitioner had purchased the ornaments while there was no document in support of the respondent No.2 except one photograph. Therefore, it cannot be said that the learned Magistrate had exercised his discretion to give interim custody to the petitioner wrongly. On the other hand, the Sessions Court went into the question of ownership for which except the photograph and the contention of the respondent No.2 that it is her Stridhan property, there was no material. Therefore, the impugned order passed by the Sessions Court in revision application is liable to 8 WP-2106-09.sxw be set aside. 8. For the aforesaid reasons, the Petition is allowed. The impugned order passed by the Sessions Court in revision application is hereby set aside and the order passed by the learned Magistrate is hereby restored. Rule made absolute accordingly. (J.H.BHATIA,J.)