BASAPPA DURGAPPA KURUBAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This petition raises a short but important question namely whether an order made under S.451 CrPC 1973, by a Criminal Court without notice to or hearing the party adversely affected can be reviewed, and it arises in the following circumstances: On the complaint of the 2nd respondent Hanumantha Gowda a charge-sheet for the offences under Ss.379 and 411, r/w 34 of the IPC was ultimately filed against the petitioners on 20-10-1976 in CC.29711976 in the Court of the Judicial Magistrate, First Class, Laxmeswar, inter alia, alleging that on 21-9-1976 the petitioners committed theft of 4 she-buffaloes belonging to the 2nd respondent Hanumantha Gowda. It appears that the 4 she-buffaloes were seized and given to the custody of the police-patil during investigation. Then on 21-10-1976, the 2nd respondent's Advocate filed an application under S.451 CrPC in the said Court for the custody of the 4 she-buffaloes. The learned Magistrate on the same day without notice to or hearing any of the petitioners made an order directing the 4 she-buffaloes to be given to the custody of the 2nd respondent till the conclusion of the trial en his execution a bond in a sum of Rs.3000. It appears, till 25-10-1976, the 2nd respondent, did not execute a bond as ordered and on that day the 2nd petitioner too filed an application under S.451 CrPC stating that the 4 she-buffaloes belonged to him and they were seized from his possession and they should be given to his custody. The learned Magistrate taking the view that in view of the order already made on 21-10-1976 under S.451 CrPC in favour of the 2nd respondent the application filed by the 2nd petitioner under S.451 CrPC is not tenable, dismissed the same by his order dt. 18-11-1976, and it is that order that is assailed in this petition.

(2.) It is obvious from the above that the learned Magistrate appears to think that under S.451 CrPC it was open to him to make an ex parte order such as the one made on 21-10-1976 and that order must be regarded as final pending conclusion of ithe inquiry or trial. But in my opinion, there is no warrant at all for such a view. There may be compelling circumstances to make an order under S.451 CrPC without notice to or hearing the party adversely affected, but an order passed in that way can- only be an interim order subject to vacation or variation or confirmation after hearing the parties concerned. In this connection, I may refer to the following observations in Ramchetsing v. Deoji Kalyani(AIR 1942 Bom 42):

(3.) In the result, this petition is allewed, the impugned order of the learned Magistrate dt.18-11-1976 is set aside, and he is directed to take the application cf the 2nd petitioner on file and dispose of the same in accordance with law and in the light of the observations made above.