Indra Deo Pandey vs Smt. Bhagwati Devi

H.N. Seth, J.—On 5th of January, 1979 during tendency of proceedings initiated u/s 145 of the Code of Criminal Procedure, Sub-Divisional Magistrate Mohammadabad, district Ghazipur passed an order u/s 146(1) of the Code of Criminal Procedure, directing that the plots in respect of which there existed a dispute causing apprehension of breach of peace be attached and that the order dated 28th of October, 1978 directing attachment of crop standing thereon and for its being kept in custody of a supporter be maintained. Aggrieved, the applicant invoked revision jurisdiction of Sessions Judge, Ghazipur. The III Additional Sessions Judge, Ghazipur, who eventually heard the revision application, relied upon a decision of a single Judge of this Court in the case of Smt. Prem Lata v. Ram Lubhaya 1978 A CR 343 and held that as the order in question was an interlocutory order his revision jurisdiction was, as laid down in Section 397(2) of the Code, barred. In the result he, vide his order dated 28th of February, 1980, dismissed the revision application filed by the applicant. The applicant then filed the present application u/s 482 of the Code of Criminal Procedure before this Court and prayed that order dated 5th of January, 1979 passed by the Sub-Divisional Magistrate Mohammadabad as also that dated 28th of February, 1980 passed by the Sessions Judge, Ghazipur be quashed.

When the application came up for hearing before a learned single Judge of this Court, learned Counsel appearing for the applicant relied upon a Division Bench decision of this Court in the case of Sohan Lal Burman Vs. State of Uttar Pradesh and Others, wherein it had been held that as an order for attachment of property made u/s 146(1) of the Code concludes the proceedings initiated u/s 145 of the Code, such an order cannot be described as an interlocutory order which u/s 397(2) of the Code has been made unamenable to revision jurisdiction of Sessions Judge and High Court.

As, however, the contrary decision by a single Judge of this Court in the case of Prem Lata v. Ram Lubhaya 1978 ACR 343 relied upon by the Sessions Judge for holding that the order dated 5th of January, 1979 passed by the Sub-Divisional Magistrate was an interlocutory order and as such not revisable, drew its inspiration from certain observations made by the Supreme Court in the case of Chandu Naik and Others Vs. Sitaram B. Naik and Another, , the learned Single Judge thought it fit that the question involved in this case, namely, whether if after making an order u/s 145(1) of the Code, the Magistrate considers that there is emergency and makes an order attaching the property in dispute u/s 145(1) of the Code, such order would fall in the category of interlocutory orders, should be decided by a larger Bench. He accordingly referred the case for decision by a larger Bench and this is how this case has come up for hearing before up.

The question as to whether an order for attachment of property made in the circumstances mentioned above is an interlocutory order or not, has arisen in the context of the provisions contained in Section 397 of the Code of Criminal Procedure which runs thus:

Under Sub-section (1) High Court and Sessions Judges have been enabled to call for and examine the records of any proceedings before any inferior criminal court situate within its or their local jurisdiction for purposes of satisfying itself or themselves as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by any inferior court. Sub-section (2), however, disables the High Court and the Sessions Judge from exercising revision jurisdiction in relation to interlocutory orders passed in any appeal, inquiry, trial or other proceedings. In other words the High Courts and the Sessions Judges have been enabled to exercise revision jurisdiction in relation to all orders passed by inferior courts situate within their respective jurisdictions excepting such orders passed by the inferior courts which fall in the category of interlocutory orders passed in any appeal, inquiry, trial or other proceedings.

According to the learned Counsel appearing for the applicant the order dated 5th of January, 1979 against which he had gone up in revision before the Sessions Judge was undoubtedly an order made in a proceedings other than an appeal, inquiry or trial and was an order falling within the category of orders made in other proceedings contemplated by Section 397(2) of the Code, but then it fell out of the bar against the exercise of revision power created by Section 397(2) as it was not an interlocutory under contemplated by Section 397(2) of the Code. Learned Counsel appearing for the opposite party, however, while accepting the position that the order in question had been made in respect of a proceeding which was other proceeding contemplated by Section 397(2) of the Code, contended that the revision jurisdiction of the Sessions Judge was barred as the order sought to be revised was an interlocutory order as contemplated by Sub-section (2) of Section 397. The controversy, therefore, that has to be resolved by us is as to whether or not the order dated 5th of January, 1979 falls in the category of interlocutory orders contemplated by Section 397(2) of the Code.

The question with regard to scope and ambit of the expression ''interlocutory order'' used in Section 397(2) of the Code came to be considered by the Supreme Court in the case of Amar Nath and Others Vs. State of Haryana and Another, . While dealing with this question Fazal Ali, J. observed that the term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Court and other like statutes. In Webster''s New Words Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory order to be appeal able must be those which decide the rights and liabilities of the parties concerning a particular aspect. However in the light of the object sought to be achieved by the Legislature in enacting Section 397(2) and barring exercise of revision jurisdiction by Sessions Judges and High Courts in respect of interlocutory orders the learned Judges observed thus:

It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important: rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid or the pending proceedings may no doubt amount to interlocutory orders against which no revision would lie u/s 397(2) of the 1973 Code. But orders which are matter of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revision jurisdiction of the High Court".

Accordingly it an order has been passed during the tendency of a particular proceeding which is purely of an interim or temporary nature and in making of which neither has there been an attempt to nor a decision of a question touching important rights or liabilities of the parties it would fall in the category of interlocutory order as it will not be possible to say that any right of a party is substantially affected thereby.

Such question again came for consideration before the Supreme Court in the case of Madhu Limaye Vs. The State of Maharashtra, . Untwalia, J., speaking for the Court observed that ordinarily and generally the expression ''interlocutory order'' has been understood and taken to mean as a converse of the term "final order". He then referred to the case law on the subject and pointed out that where a decision whichever way it is given will, if it stands, finally dispose of the matter in dispute it would be final; but a decision if given in one way will finally dispose of the matter in dispute, but if given in the other will allow the action to go on, the decision which permits the action to go on would not be final. It would merely be an interlocutory decision. The learned Judge however pointed out that in the context the aforementioned principle cannot be applied in interpreting the words ''interlocutory order'' occurring in Section 397(2). He explained that the principle that what is not a final order must necessarily be an interlocutory order, is not a principle of universal application and held that considering the object of introducing Section 397(1) in the Code, it was difficult to visualize that the Legislature intended the revision jurisdiction to be exercised only in respect of order passed on final determination of the action and in respect of the orders which were not appeal able under Chapter XXIX of the Code. In the result he expressed his views on this subject in following words:

In such a situation it appears to us that the real intention of the legislature was not to equate the expression "interlocutory order" as invariably being converse of the word "final order." There may be an order passed during the course of a proceeding which may not be final in the sense noticed in AIR 1949 1 (Federal Court) , but, yet it may not be an interlocutory order-pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in Sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may be not final orders for the purpose of Article 134 of the Constitution, yet it would not be correct to characterize them as merely interlocutory order within the meaning of 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of Sub-section (2) of Section 397. In our opinion it must be taken to be an order of the type falling in the middle course.

The real reason why the learned Judge held that the order in question though not a final order as laid down in the case of Kuppuswami AIR 1949 F.C. 1 (supra) was still not an interlocutory order but an order which fell in a category in between the final orders and interlocutory orders is culled out from the following observations made by the learned Judge at the end of paragraph 15 of his judgment:

Yet, for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceedings, will surely be not an interlocutory order within the meaning of Section 397(2).

In the case of V.C. Shukla Vs. State through C.B.I., the question as to the scope of the expression ''Interlocutory order'' used in Section 11 of the Special Courts Act 1979 came up for consideration and one of the questions that arose for consideration was whether the expression ''interlocutory order'' u/s 11(1) of the Special Courts Act had been used in the same sense in which it had been used in Section 397(2) of the Code of Criminal Procedure. Fazal Ali, J. speaking for himself and Sen, J. referred to the decisions given by the Supreme Court in Amarnath Chawla''s case AIR 1977 SC 3185 and Madhu Limay''s case 1978 AWC 96, and noticed that there was a difference between the scope and expression of the term "interlocutory order" used in the two sections and in that connection he approved the observation made by Untwalia, J. in Madhu Limay''s case that what is not a final order does not necessarily result into an interlocutory order. There can be an order which is neither interlocutory order nor final. He also seems to have approved the ratio as it emerged from Madhu Limay''s case, namely, that where an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceedings will surely not be an interlocutory order within the meaning of Section 397(2) of the Code.

The legal position that emerges from various observations made in the cases mentioned above, therefore, is that for the purposes of Section 397(2) orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of parties would be considered to be interlocutory orders within the meaning of Section 397(2) of the Code. An order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be interlocutory order as contemplated by Section 397(2) of the Code. Further the order rejecting the plea of a party on a point which when accepted will conclude the particular proceeding will surely be not an interlocutory order, a fortiori an order which concludes a proceeding would also not be an interlocutory order.

Section 145 of the Code of Criminal Procedure enables an Executive Magistrate to, if he is satisfied from a report of a police officer or upon other information that a dispute likely to cause breach of peace exists concerning any land etc. make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend the court in person or pleader and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. The section has been enacted with a view to prevent breach of peace which is likely to arise as a result of a dispute relating to land etc. and the Magistrate has been empowered to find out as to which party had been in actual possession of the property and to see that such possession is not disturbed except by having recourse to proceedings in accordance with law. For this purpose he has to hear the parties and to take evidence and to hold some inquiry which in the very nature of things takes time. Section 146 accordingly enables a Magistrate to, in a case of emergency attach the subject of dispute and arrange for its management in the interest of the party which may be found to be in its possession. While making an order u/s 146 for attaching the property in dispute the Magistrate is not required to make any inquiries or to adjudicate the right of any person to remain in possession of the property in dispute or to make any other adjudication of any other type. All that he has to be satisfied is that there is a case of emergency, namely that breach of peace is likely to occur even before he has been able to hold a proper inquiry with regard to possession u/s 145 of the Code and if that be so, he can take steps to attach the properties and to arrange for its management with the twin object of avoiding breach of peace being committed by either of the two parties and to safeguard the interest of the party which may be found to be entitled to its possession either in accordance with final orders made u/s 145 or a decision given by competent civil court. Viewed in this light, it is apparent that the order for attachment of property u/s 146(1) of the Code made during the tendency of the proceedings u/s 145 is an order purely of an intermediate or temporary nature. It neither decides nor purports to affect any legal right of any of the parties. The order is made for the purposes of effective adjudication of proceedings initiated u/s 145 of the Code. It does not result in the disposal of any part of the controversy between the parties or the proceedings u/s 145. In such a case no question of proceedings being concluded one way or the other if the plea of one party or the other is accepted arises. Accordingly applying the test laid down by the Supreme Court in the case of Amar Nath and Others Vs. State of Haryana and Another, in the light of the observations made by that Court in Madhu Limaye Vs. The State of Maharashtra, , we are of opinion that an order made during the tendency of proceedings u/s 145 of the Code for attaching property in dispute u/s 146(1) of the Code is purely an interlocutory order within the meaning of Section 397(2) of the Code.

It is true that in the case of Sohan Lal Burman Vs. State of Uttar Pradesh and Others, a Division Bench of this Court took the view that an order for attachment of property u/s 146 of the Code of Criminal Procedure is a final order inasmuch as the proceedings u/s 145 of the Code stand concluded after such an order is passed and as such the order of attachment would fall outside the ambit of interlocutory orders. If the learned Judges are right in their view that the proceedings u/s 145 stand concluded the moment the property is attached u/s 146 their conclusion that the order attaching the property u/s 146 would not be an interlocutory order will be borne out by the observation made by the Supreme Court in Madhu Limaya''s case 1978 AWC 96 . We, however, find that the Supreme Court has subsequently in the case of Mathuralal Vs. Bhanwarlal and Another, ruled to the contrary. While considering the scope of Sections 145 and 146 of the Code of Criminal Procedure the learned Judges of the Supreme Court observed that the two sections constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries. If Section 146 is torn out of its setting and read Independently of Section 145, it is capable of being construed to mean that once an attachment is effected in any of the three situations mentioned therein, the dispute can only be resolved by a competent Court and not by the Magistrate effecting the attachment. But Section 146 cannot be so separated from Section 145. It can only be read in the context of Section 145. Contextual construction must surely prevail over isolationist construction. Otherwise, it may mislead. In a case of emergency, a Magistrate may attach the property at any time after making the preliminary order u/s 145(1). There is no express stipulation in Section 146 that the jurisdiction of the Magistrate ends with the attachment. Nor is it implied. Far from it. The obligation to proceed with the enquiry as prescribed by Section 145, Sub-section (4) is against any such implication. The only provision for stopping the proceeding and canceling the preliminary order is to be found in Section 145(5) and it can be on the ground that there is no longer any dispute likely to cause a breach of the peace. If emergency is the basis of attachment under the first limb of Section 146(1) and if there is an emergency, no one can say that there is no dispute likely to cause a breach of the peace. A comparative study of Sections 145 and 146 as they stood, before 1955 and after 1955 under the old Code and as they now stand under the 1973 Code, also leads to the conclusion that the Magistrate''s jurisdiction does not end as soon as an attachment is made on the ground of emergency. In this view the very basis of Sohan Lal Barman''s case for holding that an order attaching property u/s 146 of the Code cannot be considered to be an interlocutory order disappears, and the law laid down in that case can no more be said to be a good law.

In the result, we conclude that the learned Sessions Judge was quite justified in holding that the order dated 5th of January, 1979 passed by the Sub-Divisional Magistrate was not revisable by him and the order made by him on 28th of February, 1980 does not call for any interference in exercise of powers u/s 482 of the Code of Criminal Procedure.

Learned Counsel appearing for the applicant then urged that we should exercise our jurisdiction u/s 482 Code of Criminal Procedure and quash the order of the Sub-Divisional Magistrate dated 5th of January, 1979.

In the case of Madhu Limaya v. State of Maharashtra 1978 AWC 96 the Supreme Court has indicated following principles for exercising jurisdiction u/s 482 of the Code of Criminal Procedure:

(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievances of the aggrieved party;

(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice.

(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

In the instant case the power can be exercised in favor of the applicant only if this Court comes to the conclusion that there is going to be abuse of the process of any court or otherwise it is necessary to secure the ends of justice. The learned Magistrate has found that there is an imminent apprehension of breach of peace between the parties. The proceedings u/s 145 of the Code are still going on. In these circumstances it was necessary for him to have the property attached so that breach of peace may be prevented and he may be able to conclude the proceedings u/s 145 of the Code. The satisfaction recorded by the Magistrate in this regard does not appear to be male fide or motivated. In these circumstances there is hardly any scope for saying that any process of the court is being abused by any party. Further the question as to which of the two parties is in possession has yet to be decided by the Magistrate in proceedings u/s 145. Merely because the Magistrate attaches the property in dispute with a view to prevent breach of peace being committed by the parties and to preserve the same for the benefit of the person who may be entitled to it, does not lead to any miscarriage of justice either. In these circumstances we are unable to find that this Court is required to exercise its inherent powers for preventing any miscarriage of justice.

In the result, we are not satisfied that any case has been made out for interfering either with the order of the Magistrate dated 5th of January, 1979 or with that passed by the Sessions Judge dated 28th of February, 1980. The application, therefore, fails and is rejected. As, however, the proceedings u/s 145 of the Code of Criminal Procedure have been pending for over two years, it is necessary that the Magistrate should decide those proceedings expeditiously and at an early date.