“It’s Interlocutory — Revision Won’t Lie.” Really?

A Hard Look at the Most Overused Defence in Seized Property Proceedings

– By Adv. Bhavna Gajbe

The D’damas Problem: A Useful Precedent That Has Been Stretched Too Far

The starting point for the “interlocutory” argument in propert y custody matters is invariably the Bombay High Court’s decision in *D’damas Jewellery India Pvt. Ltd. v. State of Maharashtra*, reported in 2008 All MR (Cri) 2127. It is cited like a trump card. But read carefully — and read completely — and it tells a very different story from what its invocation suggests.

What the Court Actually Did in Paragraphs 9 to 11

The genius of the D’damas judgment lies in what it did before reaching the conclusion that everyone quotes. The learned Judge, rather than treating Section 457 CrPC as a monolith, dissected it carefully and identified three distinct eventualities under which a Magistrate can act when seized property is brought before the Court:

The First Eventuality arises where the Magistrate orders return of the property to the person from whom it was seized. In this scenario, the Court in D’damas (supra) recognised that such an order bears a degree of finality — it restores possession based on an assessment of entitlement, even if tentatively. This is not a pure holding arrangement; it is a decision on who gets the property back.

The Second Eventuality is where the Magistrate passes an order for the disposal or delivery of the property to a claimant who establishes, to the Magistrate’s satisfaction, that he is entitled to possession. Here too, the Court noted, there is an adjudicatory element — a finding, however provisional, on entitlement to possession as against rival claimants. The order does more than park the property somewhere; it resolves a contest.

The Third Eventuality — and this is the one the Court in D’damas had before it — is where the Magistrate passes an order only for custody of the property during trial, subject strictly to the condition that the property be produced whenever the Court requires it. This is a bare custodial arrangement, with no determination of any right, no adjudication of competing claims, and no finding on entitlement. The property is merely placed in safe hands pending conclusion of trial.

It was only in the context of this third and narrowly defined eventuality that the Court in paragraph 10 held that such an order “would certainly fall within the category of interlocutory order” because it does not decide any right to the property, nor does it imply adjudication of it.

Yet in practice, the entire three-paragraph analysis of D’damas is routinely collapsed into any issue as such. Paragraph 11 of the judgment reinforces this contextual reading. The Court made clear that its conclusion about the interlocutory nature of the order was expressly confined to the third eventuality — a pure temporary custodial arrangement. Read toge ther, paragraphs 9 to 11 of D’damas do not hold that all orders under Section 457 CrPC are interlocutory. They hold that only a bare custodial order, stripped of any adjudicatory character, falls in that category.

The Distortion That Followed

A single extracted sentence from paragraph 10 — and that sentence is then applied universally, regardless of which of the three eventualities is actually in play. The moment an order is passed under Section 457 CrPC (or now Section 497 BNSS), the argument is made: “D’damas says it is interlocutory. Revision is barred.”

This is not an application of D’damas. It is a mutilation of it.

The Bombay High Court itself recognised this danger in subsequent decisions. In Aruna Ramkrishna Bhatkar v. State of Maharashtra, the Court was confronted with a similar invocation of D’damas and was required to examine whether the impugned order was a bare custodial arrangement or something mo re. The inquiry was not whether Section 457 was invoked — it was what the order under Section 457 actually decided. That is the correct question. And that is the question that D’damas, properly read, always required practitioners and courts to ask.

What the Supreme Court Has Actually Said: The Real Test

To understand why the blanket invocation of the interlocutory bar is legally unsound, one must go back to the foundational Supreme Court jurisprudence on what “interlocutory order” means under Section 397(2) CrPC — now mirrored in Section 442(2) BNSS. The legislative history is important. The bar on revision against interlocutory orders was introduced in the CrPC, 1973 specifically to reduce delay in criminal trials. The 41st Law Commission had recommended removing revisional jurisdiction over purely procedural, step – in -aid orders. The legislature accepted this and enacted Section 397(2). But critically, no definition of “interlocutory order” was provided — and that omission has generated decades of litigation.

The Supreme Court stepped in through a series of increasingly authoritative pronouncements.

In Amar Nath v. State of Haryana, (1977) 4 SCC 137, a two -Judge Bench laid down the foundational test: the term “interlocutory order” in Section 397(2) is used in a restricted sense. It refers only to orders of a purely interim or temporary nature that do not decide or touch the important rights or liabilities of the parties. Any order which substantially affects the rights of a party, or decides certain rights, or is a matter of moment that adjudicates a particular aspect of the trial — is *not* interlocutory.

In Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551, a three -Judge Bench affirmed Amar Nath( supra) and added clarity: the term “interlocutory order” does not invariably mean the opposite of “final order.” There is an intermediate category. An order rejecting a plea that, if accepted, would conclude a proceeding is not interlocutory — regardless of whether the trial continues.

Most significan tly, in V.C. Shukla v. State, 1980 Supp SCC 92, a four -Judge Bench of the Supreme Court — the largest to have authoritatively ruled on this point — confirmed that intermediate, quasi- final, and final orders are all revisable. The Bench also held that the t erm “interlocutory order” must be given a liberal construction in favour of the accused to ensure complete fairness of trial. If the order is not purely interlocutory, revisional jurisdiction is attracted.These decisions are binding. They represent the highest authoritative statement of law on this issue.

Applying the Test: Is an Interim Custody Order Under Section 497 BNSS Truly Interlocutory?

Section 497 BNSS (erstwhile Section 457 CrPC) confers jurisdiction on a Magistrate to pass orders for c ustody and disposal of property pending inquiry or trial. But the nature of the order that follows is not monolithic. There is a critical distinction based on what the order actually decides.

Where competing claims are raised — where one party asserts ownership and anotherchallenges it — and the Magistrate passes an order granting custody to one claimant over the other, that order does far more than regulate procedure. It determines, even if tentatively, who gets to exercise dominion over property for the entire duration of the trial — which may span months or years. It affects the economic interests, possessory rights, and sometimes the livelihood of the party denied custody.

Apply the Amar Nath (supra) test: does this order substantially affect the rights of a party? Plainly, yes. Does it adjudicate a particular aspect of the proceeding? Yes again. Can the party denied custody challenge it after the final judgment? In most practical terms, no — by then the damage is done and the remedy is meaningless.

An order of this character is not a “purely interim or temporary” arrangement. It is, at minimum, an intermediate order — and as V.C. Shukla confirms, intermediate orders are revisable. The D’damas observation, correctly understood, applies only where the order is a neutral holding arrangement with no adjudication of competing rights. The moment the Magistrate makes a choice between claimants — with reasons, on merits, affecting real rights — the order crosses the line from interlocutory to intermediate or quasi- final.

The BNSS Dimension: Old Question, New Code

The transition from CrPC to BNSS does not extinguish this jurisprudence. Section 442(2) BNSS substantially replicates Section 397(2) CrPC. The bar applies to “interlocutory orders” — and that term, having been authoritatively interpreted by the Supreme Court, carries the same meaning under the new Code. The BNSS does not define “interlocutory order” any more than its predecessor did. Judicial interpretation developed under the CrPC therefore co ntinues to govern the application of Section 442(2) BNSS, as confirmed by the principle that definitional gaps in a successor statute are filled by settled interpretation of the predecessor, where the language is materially similar.

The Remedy Vacuum Problem

There is one more argument that courts and practitioners must not overlook. The entire rationale for the bar in Section 397(2) was to prevent delay in criminal trials. It was never intended to create situations where a party is left entirely without a remedy against an order that affects substantive rights.

If revision is barred and the order is not amenable to a writ under Article 227 on the facts, the party is left in a legal vacuum for the entire duration of the trial. That outcome — leaving a citizen without access to any higher court to correct a wrong order affecting their property rights — cannot be what the legislature intended. Courts have consistently held that the law does not contemplate a complete foreclosure of remedies, and in s uch situations either revision or the High Court’s inherent jurisdiction under Section 528 BNSS (equivalent to Section 482 CrPC) must be available.

Conclusion: The Label Cannot Substitute for Legal Analysis

The word “interlocutory” is not a magic shield that extinguishes revisional jurisdiction merely because it is invoked. Every challenge to an order of interim custody of seized property under Section 497 BNSS deserves a careful, fact -s pecific inquiry into what the order actually decides — not a re flexive dismissal based on a misreading of D’damas precedent .

The Supreme Court has been consistent, through its most authoritative pronouncements, that an order which substantially affects rights, adjudicates claims, or decides a particular aspect of the proceeding is not interlocutory — and revision against it lies.

The law on this point is settled. What is needed is the willingness to argue it, and courts willing to apply it.

*The author is a practising advocate. This article reflects the author ‘s independent legal analysis and does not constitute legal advice.*