S. 457 CrPC | Magistrate Can't Unilaterally Cancel Interim Release Of Seized Property Without Giving Opportunity Of Hearing: Orissa High Court
The Orissa High Court has held that a Magistrate cannot unilaterally cancel/recall his previous order under Section 457 CrPC granting interim release/zima of a seized property in favour of a party, without affording an opportunity of hearing to the zimadar, except in case of violation of conditions of such release. [2026 LiveLaw (Ori) 60]A Bench of Dr. Justice Sanjeeb Kumar Panigrahi was of...
The Orissa High Court has held that a Magistrate cannot unilaterally cancel/recall his previous order under Section 457 CrPC granting interim release/zima of a seized property in favour of a party, without affording an opportunity of hearing to the zimadar, except in case of violation of conditions of such release. [2026 LiveLaw (Ori) 60]
A Bench of Dr. Justice Sanjeeb Kumar Panigrahi was of the view that any substantial modification of the interim release order would have the effect of review or revision, which is barred under Section 362, CrPC. While setting aside an impugned Magisterial order, the Judge further opined–
“The learned Magistrate did not purport to cancel the release on the ground of violation of any condition. Instead, he proceeded to re-appreciate the entire factual matrix concerning ownership of the vehicle including the alleged sale deed, the tax invoice, the No Objection Certificate, and the repayment records and concluded that the Petitioner's claim was improbable. This is nothing short of a review and revision of a previous final order on the merits, which is expressly prohibited by law.”
The Opposite Party No. 2 ('OP-2') sold his JCB machine to the petitioner for a consideration amount of Rs.13 lakhs. Though OP-2 delivered possession of the vehicle to the petitioner, due to lack of experience of the petitioner in dealing with the machine, the parties agreed that OP-2 would manage it and pay a monthly rent of Rs.50,000/-. However, OP-2 allegedly did not pay any such rent nor did he deliver possession of the machine to the petitioner.
The petitioner was therefore constrained to lodge an FIR against OP-2 for commission of offences under Sections 420/406/506/294/34 of the IPC. During the course of investigation, the police seized such vehicle. Though OP-2 filed an application under Section 457, CrPC seeking interim custody, it was rejected by the SDJM, Kamakhyanagar. He unsuccessfully preferred a revision before the Additional Sessions Judge, Kamakhyanagar.
Subsequently, the petitioner filed an application under Section 457, CrPC, which was allowed by the Magistrate by conditionally releasing the JCB in his favour as an interim measure. OP-2 filed a complaint petition which resulted in an FIR against the petitioner under Sections 406/419/420/467/468/471 of the IPC. During investigation of the aforesaid case, the investigating officer issued a notice under Section 91, CrPC asking production of the original sale deed of the JCB. However, the petitioner refuted to have any such document.
Accordingly, the investigating officer filed an application before the SDJM making two separate prayers i.e. one for taking over possession of the JCB from the petitioner and handing it over to OP-2 and the other for cancellation of the interim release in favour of the petitioner.
Though the Magistrate turned down the first prayer, strangely he allowed the second prayer by a separate order on the same day. Therefore, though the Court first denied to strip the petitioner of the possession of the vehicle, in contrast, it allowed to cancel interim release of the vehicle in his favour. Against such order, the petitioner filed this petition under Section 482 CrPC/ Section 528, BNSS.
Thus, the question which arose for consideration was whether the Magistrate was justified in cancelling the interim release of the seized JCB excavator in favour of the petitioner, without issuing any notice or affording an opportunity of hearing, and on grounds that essentially require a review of a final order.
Justice Panigrahi held that the SDJM faulted in cancelling the interim release of the vehicle without affording an opportunity of hearing to the petitioner/zimadar.
“The order dated 21.08.2023 releasing the vehicle in favour of the Petitioner was a final judicial order disposing of the Petitioner's application under Section 457 of the Code of Criminal Procedure. The Petitioner had complied with the terms and taken possession of the vehicle on 22.08.2023. Thereafter, when the Investigating Officer moved an application for cancellation of the zimanama, the learned Magistrate proceeded to cancel that release order on 02.01.2025, without issuing any notice, without calling for a response from the Petitioner, and without any finding that the Petitioner had violated any of the conditions imposed at the time of release. This is a clear breach of the audi alteram partem rule,” he held.
Further, the Court was of the opinion that the Magistrate by cancelling the zimanama on the basis of extraneous grounds went beyond the power vested in him which empowers him to grant such cancellation on the limited ground of violation of conditions of interim release. Therefore, the cancellation order is hit by Section 362, CrPC.
“The mere labelling of the application as one for “cancellation of zimanama” cannot circumvent the statutory bar. The power to cancel an interim release order exists only when the conditions of release are breached or when the order was obtained by fraud practised upon the Court. In the present case, no condition was alleged to have been violated, and the issue of fraud is a contentious factual dispute involving examination of signatures and documents, which is yet to be adjudicated. The Magistrate, by undertaking a mini-trial on the issue of title at the behest of the Investigating Officer, has clearly acted without jurisdiction.”
Accordingly, the impugned order was set at naught and the original order of the SDJM granting interim release of the JCB in favour of the petitioner was resuscitated.
Case Title: Batakrushna Dehury v. State of Odisha & Anr.
Case No: CRLMC No. 163 of 2025
Date of Judgment: May 22, 2026
Counsel for the Petitioner: Mr. Anish Ankur Mishra & Mr. Prasanna Kumar Mishra, Advocates
Counsel for the Opposite Parties: Mr. Tej Kumar, Addl. Standing Counsel; Mr. Debi Prasad Dhal, Sr. Advocate along with Associates for the private opposite party
Citation: 2026 LiveLaw (Ori) 60