Reserved

AFR

Criminal Revision No. 4414 of 2004

Munna Singh @ Shivaji Singh & Ors. Vs. State of U.P. & Anr.

With

Criminal Revision No. 1045 of 2002

Smt. Murti Devi & Ors. Vs. State of U.P. & Ors.

And

Criminal Revision No. 5236 of 2004

Prem Narayan @ Prem Sagar Vs. State of U.P. & Ors.

And

Criminal Revision No. 5419 of 2004

Surya Pratap Singh @ Pappu Vs. State of U.P. & Ors.

And

Criminal Revision No. 5447 of 2004

Suresh Chandra Vs. State of U.P. & Ors.

And

Criminal Revision No. 5452 of 2006

Pramod Kumar Agrawal & Ors. Vs. State of U.P. & Ors.

And

Criminal Revision No. 5720 of 2006

Smt. Sharunnishan Vs. State of U.P. & Ors.

*****

Hon'ble Amar Saran, J.

Hon'ble A.P. Sahi, J.

Hon'ble Surendra Singh, J.

(Delivered by Hon'ble A.P. Sahi,J.)

Chronic disputes relating to immovable property involving claims to

lawful possession, founded on complicated facts seeking legal review,

often give rise to an apprehension of breach of peace that leads to

initiation of steps for maintaining law and order, and preventing

unwarranted situations, calling upon the authorities empowered under the

Criminal Procedure Code to take action for attachment and pass orders

under the provisions of Sections 145(1) and 146(1) of the Code. Such

orders that may affect the rights of the parties, whether can be subject

2

matter of a revision under Sub Section (2) of Section 397 of the Code, is

the main issue of reference before this Full Bench.

To be precise, it would be appropriate to gainfully reproduce the

issue framed by the learned Single Judge after having noted the decisions

relied upon by either of the parties which is as follows:-

“Whether the orders passed by the Magistrate under

Section 145(1) and 146(1) of the Code are interlocutory

orders simplicitor and no revision petition under Section 397

or 403 of the Code or petition under Section 482 of the Code

is maintainable against the same.”

The learned Single Judge was of the opinion that cases in which

such proceedings are drawn have different facts and different

implications. It has been further indicated that denial of the revisional

jurisdiction to a litigant would be unjustified and for that the learned

Single Judge has relied on his own judgment in the case of Gulab Chand

Vs. State of U.P. & another, reported in 2004 (48) ACC 579 . While

proceeding to make the reference the learned Single Judge however

expressed his opinion that the bar of Sub Section (2) of Section 397 of

the Code would not apply uniformly and for that the opinions expressed in

two Division Benches of this Court in the case of Indra Deo Pandey Vs.

Smt. Bhagwati Devi, 1981 (18) ACC 316 and in the case of Sohan

Lal Burman Vs. State of U.P., 1977 ACC 10 were considered, and then

referring to the Supreme Court decisions given subsequently, particularly

in the case of Ranbir Singh Vs. Dalbir Singh and others, 2002 (2)

Allahabad Criminal Ruling 1457, referred this matter for a definite

opinion on the law to be laid down by a larger bench. The learned Single

Judge held that even orders of temporary nature may have far reaching

consequences upon the rights or interest of the aggrieved party, and such

a litigant cannot be rendered remediless as this was not the intention of

the framers of the statute while creating the bar under Sub Section (2) of

Section 397.

3

Sri R.C. Yadav while advancing his submissions in the leading case

of Munna Singh (supra) has urged that a Civil Suit No. 111 of 1980, in

which the respondent no. 2 Guru Ram Vishwakarma Madhukar is the

plaintiff is still pending, and a status quo interim order is operating as

such there was no occasion for the Magistrate to have passed the orders

impugned herein. The submission is that the revision against preliminary

orders passed under Section 145(1) Cr.P.C. and 146(1) Cr.P.C. are

amenable to the revisional jurisdiction under the Code as they touch upon

the rights of the parties and are therefore not mere interlocutory orders.

Reliance has been placed on the judgments that have been referred to by

the learned Single Judge in the referring order as follows:-

1.1978(15) ACC 183 SC Madhu Limaye Vs. State of

Maharashtra.

2.AIR 1980 SC 962 V.C. Shukla Vs. State.

3.1985 ACC 45 SC, Ram Sumer Mahant Puri Vs. State of

U.P.

4.2001(1) JIC 381 SC Mahant Ram Saran Das Vs. Harish

Mohan & another.

5.2002 (2) ACr.R 1457 SC Ranbir Singh Vs. Dalbir Singh

and others.

6.2000(1) ACr.R 514 Ram Lachchan and others Vs. State

of U.P. and another.

7.2004(48) ACC 579 Gulab Chand Vs. State of U.P. &

another.

8.1999 (39) ACC 649 Laxmi Kant Dubey Vs. Smt. Jamuni

& others.

Sri B.N. Rai on behalf of the respondent no. 2 submits that the

revisionist herein Munna Singh, was not a party to the civil suit, and

therefore there was no option but to proceed under Sections 145 and 146

Cr.P.C. against him. The action does not give any rise to a cause so as to

make the orders revisable in the present case. Sri Rai contends that in

the event of emergency, such powers can be invoked and along with his

written submissions he has relied on the following decisions to

substantiate his arguments:-

4

1 1969 Crl.LJ Page 13 (Vol. 75 C.N. 4) (SC) R.H.

Bhutani Vs. Miss Mani J. Desai and others.

2. 1980 SCC (Cri) Page 9 Mathura Lal Vs. Bhanwar Lal

& another.

3. 1980 SCC Page 116 Rajpati Vs. Bachan and

another.”

Sri V. Singh has advanced his submissions in Criminal Revision No.

1045 of 2002 (Smt. Murti Devi and others Vs. State of U.P. & others),

contending that where an order under Sub Section (1) of Section 145

which involves the jurisdiction of the Magistrate to proceed or terminate

the proceedings, may be revisable. An order under 146(1) Cr.P.C. cannot

be according to him, subjected to a revision under Sub Section (2) of

Section 397 Cr.P.C. In this case the learned Additional District Judge has

set aside the order passed under Section 145 read with Section 146(1) on

the ground that a civil suit in relation to the disputed property was

pending for the past 10 years in which a status quo order had been

passed on 23

rd

March, 1990 and therefore the Magistrate erroneously

assumed jurisdiction to proceed in the matter. Sri Singh contends that

where there is an apprehension of immediate breach of peace then an

order passed under Sub Section (1) of Section 146 would be an

interlocutory order and not an order of the nature as urged on behalf of

the respondents. He therefore contends referring to almost the same

decisions as relied on by the other counsel and referred to hereinabove,

that an order passed under Section 145(1) Cr.P.C. would be revisable but

not an order under Section 146(1) of the Code as it is only for a

temporary purpose.

Sri S.B. Singh who has appeared for the opposite parties No. 2 and

3 Ram Lakhan and Mukut Dhari has also furnished his written submissions

contending that parallel proceedings under the Criminal Procedure Code

have to be avoided and multiplicity of litigation is against public interest.

Therefore keeping in view the decisions cited at the bar, the impugned

5

orders under Sections 145(1) and 146(1) of the Code have to be treated

as intermediary orders and not mere interlocutory orders, hence revisable

under Section 397(1) of the Criminal Procedure Code. Sri S.B. Singh has

relied on the following decisions in support of his submissions:-

1.A.I.R. 2000 SC 1504 (Amresh Tiwari Vs. Lalta Pd. Dubey

& Ors.)

2.2001 (1) JIC 381 (S.C.) (Mahant Ram Saran Das Vs.

Harish Mohan and others)

3.1985 A.W.C. 128 S.C. (Ram Sumer Puri Mahant Vs.

State and others)

4.2001 All JIC 95 S.C. (Laphinoris Shang Pling and others

Vs. Hambay Shullai and another)

5.1999 (39) ACC 649 (Lakshmi Kant Dubey Vs. Smt.

Jamuni and others)

6.1999 (39) ACC 678 (Vishwanath and another Vs. Addl.

Session Judge, Basti and others)

7.2004 (48) ACC 579 (Gulab Chand Vs. State of U.P. and

others)

8.1978 (15) ACC 183 (S.C.) (Madhu Limaye Vs. State of

Maharashtra)

9.2002 Alld. JIC 378 (Ranbir Singh Vs. Dalbir Singh and

others)

10. 2000(40) ACC 738 (Ram Lachchan and others Vs.

State of U.P. and others)

11. AIR 1980 SC 962 (V.C. Shukla Vs. State of U.P.

and others).

Learned A.G.A. on behalf of the State submits that a revision having

been specifically barred against a interlocutory order by the legislature

under Section 397 (1) Cr.P.C., this court while answering the reference

will have to clarify the law in order to enable the Magistrates and the

Revising Authorities to decipher the cases where such a bar would not

operate. The learned A.G.A. has also invited the attention of the Court to

the decisions and the relevant paragraphs that have already been cited on

6

behalf of the learned counsel for the either side.

Having heard learned counsel for the parties, it would be

appropriate to reproduce Sections 145, 146 and Section 397 of the Code

of Criminal Procedure to understand the controversy:-

“145.Procedure where dispute concerning land or

water is likely to cause breach of peace.-

(1) Whenever an Executive Magistrate is satisfied from a

report of a police or upon other information that a dispute

likely to cause a breach of the peace exists concerning any

land or water or the boundaries thereof, within his local

jurisdiction, he shall make an order in writing, stating the

grounds of his being so satisfied, and requiring the parties

concerned in such dispute to attend his Court in person or by

pleader on a specified date and time, and to put in written

statements of their respective claims as respects the fact of

actual possession of the subject of dispute.

(2) For the purposes of this section, the expression "land or

water" includes buildings, markets, fisheries, crops or other

produce of land, and the rents or profits of any such

property.

(3) A copy of the order shall be served in the manner

provided by this Code for the service of a summons upon

such person or persons as the Magistrate may direct, and at

least one copy shall be published by being affixed to some

conspicuous place at or near the subject of dispute.

(4) The Magistrate shall then, without reference to the merits

or the claims of any of the parties to a right to possess the

subject of dispute, peruse the statements so put in, hear the

parties, receive all such evidence as may be produced by

them, take such further evidence, if any, as he thinks

necessary, and, if possible, decide whether any and which of

7

the parties was, at the date of the order made by him under

sub-section (1), in possession of the subject of dispute:

Provided that if it appears to the Magistrate that any party

has been forcibly and wrongfully dispossessed within two

months next before the date on which the report of a police

officer or other information was received by the Magistrate,

or after that date and before the date of his order under sub-

section (1), he may treat the party so dispossessed as if that

party had been in possession on the date of his order under

sub-section (1).

(5) Nothing in this section shall preclude any party so

required to attend, or any other person interested, from

showing that no such dispute as aforesaid exists or has

existed; and in such case the Magistrate shall cancel his said

order, and all further proceedings thereon shall be stayed,

but, subject to such cancellation, the order of the Magistrate

under sub-section (1) shall be final.

(6) (a) If the Magistrate decides that one of the parties was,

or should under the proviso to sub-section (4) be treated as

being, in such possession of the said subject, he shall issue

an order declaring such party to be entitled to possession

thereof until evicted therefrom in due course of law, and

forbidding all disturbance of such possession until such

eviction; and when he proceeds under the proviso to sub-

section (4), may restore to possession the party forcibly and

wrongfully dispossessed.

(b) The order made under this sub-section shall be served

and published in the manner laid down in sub-section (3).

(7) When any party to any such proceeding dies, the

Magistrate may cause the legal representative of the

deceased party to be made a party to the proceeding and

shall thereupon continue the inquiry, and if any question

8

arises as to who the legal representative of a deceased party

for the purposes of such proceeding is, all persons claiming to

be representatives of the deceased party shall be made

parties thereto.

(8) If the Magistrate is of opinion that any crop or other

produce of the property, the subject of dispute in a

proceeding under this section pending before him, is subject

to speedy and natural decay, he may make an order for the

proper custody or sale of such property, and, upon the

completion of the inquiry, shall make such order for the

disposal of such property, or the sale-proceeds thereof, as he

thinks fit.

(9) The Magistrate may, if he thinks fit, at any stage of the

proceedings under this section, on the application of either

party, issue a summons to any witness directing him to

attend or to produce any document or thing.

(10)Nothing in this section shall be deemed to be in

derogation of the powers of the Magistrate to proceed under

section 107.

146.Power to attach subject of dispute and to appoint

receiver.-

(1) If the Magistrate at any time after making the order

under sub-section (1) of section 145 considers the case to be

one of emergency, or if he decides that none of the parties

was then in such possession as is referred to in section 145,

or if he is unable to satisfy himself as to which of them was

then in such possession of the subject of dispute, he may

attach the subject of dispute until a competent Court has

determined the rights of the parties thereto with regard to

the person entitled to the possession thereof:

Provided that such Magistrate may withdraw the attachment

9

at any time if he is satisfied that there is no longer any

likelihood of breach of the peace with regard to the subject of

dispute.

(2) When the Magistrate attaches the subject of dispute, he

may, if no receiver in relation to such subject of dispute has

been appointed by any Civil Court, make such arrangements

as he considers proper for looking after the property or if he

thinks fit, appoint a receiver thereof, who shall have, subject

to the control of the Magistrate, all the powers of a receiver

appointed under the Code of Civil Procedure, 1908:

Provided that in the event of a receiver being subsequently

appointed in relation to the subject of dispute by any Civil

Court, the Magistrate-

(a) shall order the receiver appointed by him to hand over

the possession of the subject of dispute to the receiver

appointed by the Civil Court and shall thereafter discharge

the receiver appointed by him;

(b) may make such other incidental or consequential orders

as may be just.”

397. Calling for records to exercise powers of revision: -

(1)The High Court or any Sessions Judge may call for and

examine the record of any proceeding before any inferior

Criminal Court situate within its or his local jurisdiction for the

purpose of satisfying itself or himself; to the correctness,

legality or propriety of any finding, sentence or order,

recorded or passed, and as to the regularity of any

proceedings of such inferior Court, and may, when calling, for

such record, direct that the execution of any sentence or

order be suspended, and if the accused is in confinement that

he be released on bail or on his own bond pending the

examination of the record.

Explanation:- All Magistrates, whether Executive or Judicial

10

and whether exercising original or appellate jurisdiction shall

be deemed to be inferior to the Sessions Judge for the

purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by sub-section

(1) shall not be exercised in relation to any

interlocutory order passed in any appeal, inquiry, trial

or other proceeding.

(3) If an application under this section has been made by any

person either to the High Court or to the Sessions Judge, no

further application by the same person shall be entertained

by the other of them.”

The legal wrangle began when different courts gave their

interpretations in the absence of any precise definition of the words

“interlocutory order” occurring in the Code. The same not having been

either illustratively or exhaustively defined came to be given different

shades on the facts of a case in which the said words were sought to be

interpreted. We may gainfully refer to the locus classicus and magnum

opus on this subject rendered by the apex court in the celebrated decision

of Madhu Limaye Vs. State of Maharashtra, reported in AIR 1978

Supreme Court 47 . This case has been referred to and followed as an

illustration which in turn had relied on two earlier decisions in the case of

Smt. Parmeshwari Devi Vs. The State & another, AIR 1977

Supreme Court 403 and the decision in the case of Mohan Lal Magan

Lal Thacker Vs. State of Gujarat, AIR 1968 Supreme Court 733 .

The said decision is an authority for having coined the terminology of an

intermediate order or intermediary order which can be subject to a

revision under Sub Section (1) of Section 397 of the Code. While dealing

with the issue of distinction between an interlocutory order and a final

order their Lordships noticed the definition contained in the third Edition

of Halsbury's Laws in England as follows in Paragraph 12 of the said

judgment:-

11

“Para 12. Ordinarily and generally the expression 'interlocutory

order' has been understood and taken to mean as a converse

of the term 'final order.' In volume 22 of the third edition of

Halsbury's Laws of England at Page 742, however, it has been

stated in para 1606:-

“..........................a judgment or order may be final for

one purpose and interlocutory for another, or final as to part

and interlocutory as to part. The meaning of the two words

must therefore be considered separately in relation to the

particular purpose for which it is required.”

In para 1607 it is said:

“In general a judgment or order which determines the

principal matter in question is termed 'final'.”

In para 1608 at pages 744 and 745 we find the words:

“An order which does not deal with the final rights of the

parties, but either (1) is made before judgment and gives no

final decision on the matter in dispute but is merely on a

matter of procedure or (2) is made after judgment, and

merely directs how the declarations of right already given in

the final judgment are to be worked out is termed

“interlocutory.” An interlocutory order, through not conclusive

of the main dispute, may be conclusive as to the subordinate

matter with which it deals.”

An illustration that would be worth referring is in the case of Amar

Nath and others Vs. State of Haryana and others, reported in AIR

1977 Supreme Court 2185 where the choice of the legislature to

introduce the bar was traced out and explained in paragraph 6 of the said

judgment as follows:-

6. ….... The main question which falls for determination

in this appeal is as to what is the connotation of the term

“interlocutory order” as appearing in sub-section (2) of Section

397 which bars any revision of such an order by the High

Court. The term “interlocutory Order” is a term of well-known

legal significance and does not present any serious difficulty. It

12

has been used in various statutes including the Code of Civil

Procedure. Letters Patent of the High Courts and other like

statutes. In Webster's New World Dictionary “interlocutory”

has been defined as an order other than final decision. Decided

cases have laid down that interlocutory orders to be

appealable must be those which decide the rights and liabilities

of the parties concerning a particular aspect. 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 of the pending proceeding, may no doubt amount to

interlocutory orders against which no revision would lie under

Section 397 (2) of the 1973 Code. But orders which are

matters 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 revisional jurisdiction of the

High Court.”

In the case of Smt. Parmeshwari Devi (supra) the law laid down in

Mohan Lal's case (supra) was explained as follows:-

“7. The Code does not define an interlocutory order, but it

obviously is an intermediate order, made during the

preliminary stages of an enquiry or trial. The purpose of

13

sub-section (2) of Section 397 is to keep such an order

outside the purview of the power of revision so that the

enquiry or trial may proceed without delay. This is not

likely to prejudice the aggrieved party for it can always

challenge it in due course if the final order goes against it.

But it does not follow that if the order is directed against a

person who is not a party to the enquiry or trial, and he will

have no opportunity to challenge it after a final order is

made affecting the parties concerned, he cannot apply for

its revision even if it is directed against him and adversely

affects his rights.

8. A somewhat similar argument came up for

consideration before this Court in Mohan Lal Magan Lal

Thacker v. State of Gujarat (1968) 2 SCR 685 = (AIR 1968

SC 733). The controversy there centred round the meaning

of Article 134(1) (c) of the Constitution and the Court

examined the meaning of the words “final” and

“interlocutory.” It was held that the meaning “had to be

considered separately in relation to the particular purpose

for which it is required” to be interpreted. No single test

can be applied to determine whether an order is final or

interlocutory. Then it has been held by this Court in that

case as follows-

“An interlocutory order, though not conclusive of the

main dispute may be conclusive as to the subordinate

matter with which it deals.” It may thus be conclusive with

reference to the stage at which it is made, and it may also

be conclusive as to a person, who is not a party to the

enquiry or trial, against whom it is directed..........”

Thus, in view of the aforesaid decisions, it is clear that no exclusive

or exhaustive singular test can be framed in a straight jacket formula to

determine as to whether an order would be final or interlocutory. The

meaning of the words have to be understood in the light of the facts of

each particular case in relation to the particular purpose for which the

word is required to be interpreted. This in our opinion is reflected in the

14

decision in the case of Ranbir Singh (supra) where while upholding the

order of the High Court it was clearly indicated that where the parties

have already entered into a litigation before the Civil Court then such

proceedings should be avoided.

Before proceeding to express our opinion on the connotation of the

words interlocutory orders, final orders and intermediary orders, it would

be appropriate to refer to the decisions of this Court which have impelled

the learned single Judge to refer the matter for a definite pronouncement.

The Division Bench in the case of Sohan Lal Burman (supra) was held to

be no longer good law by the Division Bench in the case of Indra Deo

Pandey (supra). The case of Indra Deo Pandey went on to hold that an

order passed under Sub Section (1) of Section 146 for attachment during

the pendency of the proceedings of Section 145 even if improper, is an

error of purely temporary and intermediate in nature which does not

purport to decide any legal rights of the parties. It was further held that

such an order is passed for the purpose of effective final adjudication of

the proceedings and it does not amount to any disposal of any part of the

controversy between the parties.

This aspect of the matter came to be considered in a case by a full

bench of the Jammu and Kashmir High Court pertaining to an order

passed under Section 145(1) of the Code read with the amendments

brought about in the criminal procedure code as applicable in the State of

Jammu & Kashmir under the Amending Act No. 37 of 1978 in the case of

Brij Lal Chakoo Vs. Abdul Ahmad, 1980 Cr.L.J. Pg. 89. The Full Bench was

called upon to resolve the issue about the maintainability of a revision in

relation to an interlocutory order of a similar nature as involved herein.

The decision went on to hold that the assumption of jurisdiction by

the Magistrate under Section 145 Cr.P.C. and the making of a preliminary

order cannot be termed as a mere interlocutory order, inasmuch as, the

very foundation upon which the Magistrate proceeds is based on a

satisfaction that there is a dispute relating to possession of immovable

15

property and there is an apprehension of breach of peace. Whether the

Magistrate had the jurisdiction to proceed or not was held to be not a

mere interlocutory order and therefore revisable if the ingredients of

jurisdiction are missing. The decision further went on to hold that the

attachment of the property under Sub Section (4) of Section 145 in such

a situation would also be without jurisdiction as it affects the possessory

right of a party. It was further held that even though the order of

attachment is made at an interim stage of the proceedings nevertheless

“it is an order of moment which has the effect on the right of the

party in possession and cannot therefore be said to be a mere

interlocutory order so as to bar the revisional jurisdiction of the

high court”.

The Court further went on to hold that there are cases where

Magistrates invoke such provisions arbitrarily in a routine manner which

has the effect of dispossessing a person already in possession. In such a

situation the aggrieved party can always demonstrate before the

revisional court that no such emergent circumstance existed justifying the

invoking of such powers or that the Magistrate had no jurisdiction to

make such an order regardless of the procedure laid down under Section

145 Cr.P.C. Relying on the decision in the case of Smt. Parmeshwari Devi

(supra) in Paragraph 17 held as follows:-

Para 17. It is worthy to mention here that the orders of the

category as mentioned above though not conclusive of the

main dispute are, undoubtedly, conclusive as to the

subordinate matter. That such an order is amenable to the

revisional jurisdiction of the High Court cannot be gainsaid.”

This full bench decision has been followed by a learned Single Judge

of the Gauhati High Court in the case of Indrapuri Primary Co-

operative Housing Society Ltd. and another Vs. Sri Bhabani Gogoi,

reported in 1991 Cri.LJ. 1765.

16

To the contrary however a pure order under Section 146(1) was

held to be an interlocutory order by the Full Bench of the Punjab &

Haryana High Court in the case of Kartar Singh and others Vs. Smt.

Pritam Kaur and another, 1984 Cr.L.J. 248 . The said decision

however went on to deal with the matter on the footing that the issue

revolved around the composite provisions of Sections 145 and 146 Cr.P.C.

and unequivocally held that these proceedings do not substantially call for

being subjected to a revision. In Paragraph 12 of the decision the Division

Bench judgment of this Court in the case of Indra Deo Pandey (supra)

was approved as follows:-

“Para 12. Apart from the judgments of this Court, the recent

Division Bench decision in Indra Deo Pandey Vs. Smt. Bhagwati

Devi, 1981 All LJ 687, renders a complete answer to most of

the contentions raised on behalf of the petitioner. After an

exhaustive examination of the matter (with which I entirely

concur), it was held that the earlier Division Bench view of the

same High Court in Sohan Lal Burman Vs. State of U.P., 1977

Cri LJ 1322, was in fact no longer good law after the

authoritative pronouncement in Mathuralal's case (1980 Cri LJ

1) (SC) (supra).”

Nonetheless, it is necessary to refer to Paragraph 4 of the same Full

Bench judgment of Kartar Singh's case (supra) where the Court has

expressed its difficulty in attempting a precise and conclusive definition so

as to draw a distinction between an interlocutory order and a final order

or any other order falling in between. Paragraph 4 of the said judgment is

gainfully reproduced herein under:-

“Para 4. It is plain that the specific question herein is but a

limb of the larger yet perennial controversy as to what

constitutes a final as against a merely interlocutory order and

the penumbral area lying betwixt the two extremes. In view of

the mass of conflicting case law on the point, it would appear

that these two terms are not capable of a precisely exclusive

17

definition for each and it would be a vain attempt to define

what seems to be inherently undefinable. One cannot help

commenting that the erudite attempts to confine each of the

terms to a procrustean bed of the precise legal definition is

reminiscent of the somewhat tautologist definition of a circle as

one, that is, circular. Therefore, without launching into a

dissertation as to what are the precise legal attributes of a final

order as against an interlocutory one and attempting to draw a

razor-sharp line betwixt the two, I propose to confine myself to

the limited focal question – whether in the peculiar context of

Section 146 (1) of the Code, the attachment of immovable

property is broadly interlocutory in nature and that too for the

specific purposes of S. 397 (2) thereof.”

However while proceeding to answer the reference as noted above,

the Court went on to take into consideration the provisions of Section 145

as well. But while answering the reference the recital contained in

Paragraph 16 of the judgment is as follows:-

“Para 16. To conclude, the answer to the question posed at

the very outset, is rendered in the affirmative and it is held

that an order of attachment of an immovable property under

Section 146 (1) of the Code is interlocutory in nature within

the meaning of Section 397 (2) of the Code and consequently

no revision against the same is maintainable.”

Then came the decision in the case of Ram Sumer Puri Mahant

Vs. State of U.P & others, reported in 1985 (1) SCC 427 as

explained in the later decision of the apex court in the case of

Jhummamal Vs. State of Madhya Pradesh (1988) 4 SCC 452 and

later on dealt with in the case of Amresh Tiwari Vs. Lalta Prasad

Dubey and another reported in (2000) 4 SCC 440. The outcome of

these three decisions was to the effect that where an injunction order

passed by a competent court of civil jurisdiction existed, then proceedings

initiated under Section 145 Cr.P.C. deserved to be dropped. The Apex

18

Court however in the case of Ranbir Singh (supra) held that even though

the orders of the High Court setting aside the orders under Section

145(1) and 146(1) were unsustainable, yet in the circumstances of the

case, the order of the High Court quashing the preliminary order under

Section 145 (1) and 146(1) Cr.P.C. were maintained leaving it open to the

parties to approach the civil court for an appropriate interim order where

the dispute was pending without being influenced by the findings recorded

by the High Court. The emphasis therefore again was laid on the principle

that where a civil proceeding has been initiated and the matter is pending

between the parties, then the Magistrate should be slow in invoking the

jurisdiction of attaching or taking into possession of a property involved in

such a dispute.

In a matter of reference before the Madhya Pradesh High Court a

Division Bench went on to hold that an order passed under Section 146

(1) Cr.P.C. is not an interlocutory order and would therefore be revisable.

The said decision is reported as Keshav Prasad Bhatt Vs. Ramesh

Chandra 1990 Cr.L.J. 1541.

While carving out a distinction between the orders of a final nature

and interlocutory nature the apex court in the case of V.C. Shukla Vs.

State, AIR 1980 Supreme Court 962 gave the nomenclature of an

“intermediate order” to be between a final order and the initiation of a

proceeding which may be affecting the interest of either of the parties,

and could not be termed as a pure and simple interlocutory order. This

view came to be followed by a learned Single Judge of this Court earlier

who has made the present reference in the case of Gulab Chand Vs.

State of U.P. 2004 (48) ACC 579 and again by a learned single Judge

of this Court in the case of Lakshmi Kant Dubey Vs. Smt. Jamuni &

others, reported in 1999 (39) ACC 649.

In the aforesaid background this Court has therefore to proceed to

first give an indication as to meaning of the words final order,

interlocutory order and an intermediate or intermediary order and the

distinction between them.

19

The term “final order” means a decision finally affecting the rights

of the contending parties. It is an issue which goes to the foundation of a

trial and can be never questioned if it has been allowed to stand. It would

therefore be final. The test of such finality would depend upon the facts of

a case indicating termination of proceedings and ultimately affecting the

fate of the parties. A final order is one which leaves nothing more to be

decided by its own force.

The word 'Final' connotes that which comes at the end. It marks the

last stage of a process leaving nothing to be looked for or expected. It is

something ultimate in nature. It puts to an end to something or in other

words, it brings to a close any strife or uncertainty. It is the conclusion of

an event, that which comes last. It connotes the finishing of some act and

completion of some beginning. It does not allow the inclusion of anything

or something that might be possible thereafter. A decisive stroke that

cannot be reversed or altered is final.

The word “interlocutory order” as defined in the Law Lexicon by

P. Ramanatha Aiyar 1997 Edition, is an order made pending the cause and

before a final hearing is concluded on merits. Such an order is made to

secure some end and purpose necessary and essential to the progress of

the litigation, and generally collateral to the issues formed by the

pleadings and not connected with the final judgment. It has been termed

as a purely interim or temporary nature of an order which does not decide

the important rights or liabilities of the parties.

An interlocutory stage is an intermediate moment before the

happening of the main event. It is something during the course of an

action in the shape of a pronouncement which is not finally decisive of a

dispute. It is provisional but not final touching some incident or emergent

question.

Then comes the third category of the orders which fall in between.

In our opinion it is this aspect which was left out in the decision of the

20

Punjab & Haryana High Court in the case of Kartar Singh (supra) which

deserves to be adverted to. The word intermediate order as defined in the

law Lexicon (supra) is an order granted before entry of judgment, made

between the commencement of an action and the final pronouncement.

The word 'Intermedium' means between or in the middle. It is

something intermediate in position or an intervening action or

performance before the final conclusion. That which is situated or

occurring between two things is intermediate. It holds the middle place or

degree between two extremes interposed in between.

There is no doubt about what are final orders and the controversy

stands narrowed down to the difference between an interlocutory order

and an intermediate/intermediary order.

The distinction between the two, interlocutory and intermediary

would be that the former does not bring about any consequence of

moment and is an aid in the performance of the final Act. It does not

affect any existing rights finally or to the disadvantage of either extremes.

An intermediate order can touch upon the rights of the parties or be an

order of moment so as to affect any of the rival parties by its operation.

Such an order affecting the rights of a person or tending to militate

against either of the parties even at the subordinate stage can be termed

as an intermediate or an intermediary order.

The invoking of the emergent powers under Section 146(1) Cr.P.C.

is dependant on the satisfaction of the Magistrate that it is a case of

emergency and none of the parties are in possession or the Magistrate at

that stage unable to decide as to which of the parties was in possession.

It is only then that attachment can be resorted to. An emergency is an

unforeseen occurrence or a crisis with a pressing necessity which

demands immediate action. An emergent situation is one that suddenly

comes to notice and is almost unexpected or unapprehended. It is a

situation that requires prompt attention impelling immediate action.

21

The action to be taken would however be dependant on the

satisfaction of a Magistrate recorded under Section 145(1) Cr.P.C. that

there exists an apprehension of breach of peace either on the basis of a

police report or upon other information received. The order of attachment

on such a dispute being brought to the notice of the Magistrate therefore

is clearly linked with the right of a party to retain lawful possession. The

aforesaid ingredients have to exist to allow the Magistrate to exercise his

authority within his jurisdiction. Accordingly the assumption of jurisdiction

is dependant on the contingency that may arise in a dispute referable to

the said provisions and hence what necessarily follows that if there is an

exercise for want of jurisdiction or erroneous exercise of jurisdiction, then

the order on the given facts of a case may not be a mere interlocutory

order. If the exercise of a power and passing of an order is questionable

to the extent of touching the rights of the parties or are orders of

moment, depending on the peculiar facts of individual cases, then the

order in our opinion would be an intermediate nature of an order that can

be subjected to a revision under Section 397 Cr.P.C.

The legislature in its wisdom will be presumed to have curtailed the

revisional jurisdiction to the extent as spelt out under Sub Section (2) of

Section 397 Cr.P.C. in order to prevent any delays or unnecessary

impediments in proceedings relating to trials under the Criminal

Procedure Code. As noticed above, the orders which do not fall within the

exact nature of an interlocutory order may therefore not be prohibited

from being subjected to a revision in larger public interest. A litigant who

is aggrieved by an action which does not involve immediate urgency can

always knock the doors of the revisional court, dependant on the facts of

each individual case as explained hereinabove.

We would also like to add that there were divergent views with

regard to the jurisdiction of the Magistrate proceeding after attachment

under 146(1) Cr.P.C. but the said issue came to be resolved by the apex

court in the case of Mathuralal Vs. Bhanwarlal, 1979 (4) SCC 665.

22

In view of what has been expressed hereinabove, we find ourselves

in respectful agreement with the views expressed by the various courts

and this Court to the effect that there is a third category of order which

falls in between an interlocutory and a final order that does touch upon

the rights of the parties and is an order of moment. An order under

Section 145(1) followed by an order under Section 146(1), or even

passed simultaneously, brings to the forefront the primary question of the

assumption of jurisdiction by the Magistrate to proceed in a matter. If the

facts of a particular case do not warrant the invoking of such a

jurisdiction, for example, in cases where civil disputes are pending and

orders are operating, then in view of the law laid down by the apex court

in the decisions referred to hereinabove following Ram Sumer Puri

Mahant's case (supra), an order ignoring such proceedings will have to be

curtailed for which a revision would be maintainable under Sub Section

(1) of Section 397 as, such an order, would not be a mere interlocutory

order and would touch upon the rights of the parties.

We have also come across an unreported judgment of the apex

court in the case of Gyatri & others Vs. Ranjit Singh & others, Special

Leave to Appeal (Crl) No. 3584 of 2006 decided on 13.2.2008 where the

same view has been reiterated.

The difficulty again is that can such a list of illustrations be

catalogued so as to confine the revisional jurisdiction in relation to such

intermediate orders. Our obvious answer is in the light of what has been

said in the case of Mohan Lal's case (supra) by the apex court that the

determination of such an issue as to whether a revision would be

maintainable or not would in turn depend upon the nature of the order

and the circumstances in which it came to be passed. Thus it would

depend on the facts and circumstances of each separate individual case

where the revising authority will have to examine as to whether the

Magistrate has proceeded to exercise his judicious discretion well within

his jurisdiction or has travelled beyond the same, keeping in view the

various shades of litigation in such matters where the apex court and this

23

Court has held that an intermediate order, which is not necessarily an

interlocutory order, could be subjected to revision. An order not

conclusive of the main dispute between the parties, but conclusive of the

subordinate matters with which it deals is not a purely interlocutory order

even though it may not finally adjudicate the main dispute between the

parties. In our opinion therefore a revision would not be barred under Sub

Section (1) of Section 397 of the Code if the orders impugned before the

revising authority fall within the tests indicated hereinabove.

Our answer to the question referred would be therefore in the

negative, and we hold that orders passed under Sections 145(1) and

146(1) of the Code are not in every circumstance, orders simplicitor, and

therefore a revision would be maintainable in the light of the observations

made in this judgment depending on the facts involved in each case.

Coming to the issue as to whether a petition under Section 482

would be maintainable or not, the same has been dealt with by a Full

Bench of our court in the case of H.K. Rawal and another Vs. Nidhi

Prakash and another reported in 1990 Cr.L.J. 961. We having gone

through the said decision, do not find it necessary to answer the same as

the question under reference before this Court is primarily relating to the

maintainability of a revision that has been dealt with hereinabove.

Let the papers be now placed before the learned Single Judge for

proceeding to decide the revisions in accordance with the principles

indicated hereinabove.

Dt. 11

th

Oct. 2011

Sahu

(Surendra Singh,J.) (A.P. Sahi,J.) (Amar Saran,J.)