Shankar Agarwal vs Chief Judicial Magistrate and Others

V. Bahuguna, J.—Present revision u/s 397 CrPC is directed against an order of the Chief Judicial Magistrate, Ballia, dated 15-9-90. By the said order the Chief Judicial Magistrate, Ballia has directed the S.H.O. Kotwali to register a FIR of the applicant Shri Kashi Nath Misra against the District Magistrate and to investigate the case.

The facts in brief are that on 14-12-89 Kashi Nath Misra filed an application in the Court of Chief Judicial Officer, Ballia alleging that the District Magistrate has felled trees in his compound and had sold them and as such the C.J.M. u/s 156(3) CrPC directed the SHO. Kotwali to register his FIR and investigate the case. The Chief Judicial Magistrate called for a report from the SSP Ballia and not being satisfied with his report he appointed Sri Chhotey Lal Verma. Advocate as a Commissioner to submit his report. In his report Sri Chhotey Lal Verma submitted that certain branches of trees were lying in the compound of the District Magistrate and that due to non-cooperation from the Guards he could not submit his complete report. On the basis of the allegations made in the application of Sri Kashi Nath Misra, the C.J.M. passed an order u/s 156(3) CrPC directing the S.H O. Kotwali to lodge the first information report of Sri Kashi Nath Misra and investigate the case.

It is noteworthy that no complaint as contemplated under the provisions of Section 190 of CrPC was filed by Kashi Nath Misra in the Court of Chief Judicial Magistrate and merely an application was moved for seeking direction from the C.J.M. to order investigation u/s 159(3) of the Code of Criminal Procedure. There was no complaint pending before the Chief Judicial Magistrate on the basis of which he could call for the police report.

The question which arises for consideration is as to whether the order of the Chief Judicial Magistrate dated 15-9-90 is an inter locutory order in nature, which ousts the jurisdiction of this Court u/s 397(2) CrPC.

The effect of the order of the Chief Judicial Magistrate is that the application filed by Kashi Nath Verma stands finally disposed of and there-after no further proceedings ere pending in his Court. As a result of the order of C.J.M. the S.H O, Kotwali is bound to register the FIR and investigate the case against the District Magistrate. The rights of the District Magistrate are certainly effected by the said order and as such he is prejudiced by the impugned order, which has attained finality.

The term interlocutory order u/s 397(2) of Criminal Procedure Code has not been defined in the Code, but in a series of decisions of the Supreme Court it has been held that it is the nature of the order in the facts of each case, which is the determining test as to whether an order is interlocutory in nature or not. In Amar Nath and Others Vs. State of Haryana and Another, , the Supreme Court while interpreting the term interlocutory order in Section 397(2) of the CrPC have held that an order, which substantially effects 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 forms basis for insertion of this particular provision in Section 397 CrPC. A similar view has been taken by the Supreme Court in Madhu Limaye Vs. The State of Maharashtra, and in the case of V.C. Shukla Vs. State through C.B.I., . In the case of V.C. Shukla the principle laid down is as follows :

An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties.

Thus summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decide the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all. This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having resort to Criminal Procedure Code or any other statute. That is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes mentioned above, and this is what the term interlocutory order means when used in Section 11(I) of the Act.

The Chief Judicial Magistrate has allowed the application u/s 156(3) and no complaint was filed or is pending before him in this regard. No proceedings are now pending in his Court and as such the present order cannot be said to be interlocutory in nature.

In the affidavit filed in this Court it has been specifically stated that the dry tree branches in the compound of the District Magistrate, Ballia had been felled and auctioned by the Estate Officer for Rs. 1000/- prima facie no case was made out against the District Magistrate. The application filed by Kashi Nath Misra did not disclose sufficient particulars on the basis of which the Chief Judicial Magistrate could form the requisite opinion for exercising his powers u/s 156(3) of the CrPC. In the result the present revision is allowed and the order of the Chief Judicial Magistrate, Ballia dated 15-9-90 is set aside.