LILLY FRANKLIN v. WILSON — 1977 DIGILAW 274 (KER)

Judgment :- 1. On the motion of the petitioner the Sub-Divisional Magistrate, Fort Cochin initiated proceedings under S.145 of the Code of Criminal Procedure and on 17th June, 1977 issued the following order: "Whereas I am satisfied from the report of the Divisional Inspector of Police, Mattancherry dated 7 61977 duly counter signed by the Assistant Commissioner (Law and Order) Ernakulam that a dispute likely to cause a breach of the peace concerning 13.308 cents of landed properties comprised in Sy. No. 988/14-16 of Rameswaram Village of Cochin Taluk and the house bearing door No. XVI/1188, which is situated within the local limits of this court, I do hereby require you to attend my court or by pleader at 11 A. M. on 24-6-1977 and put in written statement of their respective claim, if any, in regard to the actual possession of the land and building under dispute. I am satisfied that the matter is one of emergency, I hereby order that the subject of dispute will be attached and taken into the court custody until further orders. Village Officer, Rameswaram Village is appointed as Receiver for the disputed properties. Given under my hand and seal of the court this the 17th day of June, 1977. Sd/-Sub Divisional Magistrate." 2. The 1st respondent was served with a copy of the order. He filed Criminal Revision Petition 57 of 1977 before the Court of Session, Ernakulam. The 3rd Additional Sessions Judge overruled the objection that the revision petition was barred in view of S 397 (2) of the Code of Criminal Procedure. The learned judge held that a composite order invoking the powers under S.145 (1) is unsustainable in law. The court further held that a case of emergency was not made out on the tacts and circumstances of the case. 3. All the above grounds are challenged in this revision petition. I shall first deal with the maintainability of the revision petition before the Court of Sessions. S.397 (2) of the Code of Criminal Procedure states that the powers of revision under S.397 (1) shall not be exercised in relation to any interlocutory order pass d in any appeal, inquiry, trial or other proceeding. I shall first deal with the maintainability of the revision petition before the Court of Sessions. S.397 (2) of the Code of Criminal Procedure states that the powers of revision under S.397 (1) shall not be exercised in relation to any interlocutory order pass d in any appeal, inquiry, trial or other proceeding. The contention put forward on behalf of the petitioner is that neither the preliminary order under S.145 (1) nor the order of attachment under S.146 (1) finally disposed of the proceedings before the Sub Divisional Magistrate and therefore the order dated 17th June, 1977 is an interlocutory order coming under S.397 (2) of the Code of Criminal Procedure. 4. There are innumerable cases dealing with the question when an order can be said to be final and when interlocutory. The question when an order could be said to be 'final order' for purposes of S.109 (a) of the Code of Criminal Procedure, 1898 came up before the Privy Council in Abdul Rahman v. Cassim & Sons (1933 P. C. 58). The Privy Council after referring to some earlier decisions observed: "The finality must be a finality in relation to the suit. If, after the order, the suit is still a live suit in which rights of parties have still to be determined, no appeal lies against it under S.109 (a) of the Code". 5. The question came up before the Supreme Court in AIR. 1968 S. C 733 Mohanlal v. State of Gujarat. The relevant portion of the judgment is extracted below: "The question as to whether a judgment or an order is final or not has been the subject matter of a number of decisions; yet no single general test for finality has so far been laid down. The reason probably is that 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 "final" and 'interlocutory" has, therefore, to be considered seperately in relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which determines the principal matter in question is termed final. It may be final although it directs enquiries or is made on an interlocutory application or reserves liberty to apply. However, generally speaking, a judgment or order which determines the principal matter in question is termed final. It may be final although it directs enquiries or is made on an interlocutory application or reserves liberty to apply. In some of the English decisions where this question arose one or the other of the following four tests was applied. 1. Was the order made upon an application such that a decision in favour of either party would determine the main dispute? 2. Was it made upon an application upon which the main dispute could have been decided? 3. Does the order as made determine the dispute? 4. If the order in question is reversed, would the action have to go on?" The Supreme Court approved the following dictum in Bozson v. Altrinchan Urban Council (1908-1KB. 547). "An interlocutory order though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals." 6. S.397(2) of the Code of Criminal Procedure itself was the subject matter of decision in Parmeshwari Devi v. State And Another ((1977) 1 SCC 169). In that case the appellant was asked under S.94 of the Code of Criminal Procedure to appear in court and make her denial of possession of the document on oath and be subject to questions by the court. The revision against this order was refused on the ground that it was "interlocutory". The Supreme Court overruled the contention and observed: "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 sub-s. (2) of S.397 is to keep such an order outside the purview of the power of revision so that the enquiry or (rial 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. The purpose of sub-s. (2) of S.397 is to keep such an order outside the purview of the power of revision so that the enquiry or (rial 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." The court came to the following conclusion: "So in so far as the appellant is concerned, the order of the magistrate could not be said to be an interlocutory order and the revisional courts erred in raising the bar of subsection (2) of S.397 against it." (See also Pathu v. State of Kerala (1975 KLT. 696)). 7. Thus whether a particular order is interlocutory or final will depend on the nature of the order, the person against whom it is made and the proceedings wherein it is passed. In the instant case, the order dated 17th June, 1977 issued by the Magistrate takes in not only a preliminary order under S.145(1) but also an order of attachment under S.146(1). Once an order is passed under S.146(1) Cr.P.C, the Magistrate is not expected to proceed with the enquiry under S.145 or to decide whether any and which of the parties was in possession of the subject of dispute on the date of the preliminary order or whether there has been a dispossession within a period of two months of the preliminary order. The attachment will continue until a competent court determines the rights of parties or until the Magistrate withdraws the attachment on being satisfied that there is no longer a likelihood of breach of peace with regard to the subject of dispute. The order of attachment thus puts an end to the proceedings so far as it relates to the enquiry by the Magistrate as to who was in possession of the property and viewed in that light, it is a final order. The order of attachment thus puts an end to the proceedings so far as it relates to the enquiry by the Magistrate as to who was in possession of the property and viewed in that light, it is a final order. The revision petition before the Sessions Judge was not, therefore, hit by the restriction contained in S, 397(2) of the Code of Criminal Procedure and the learned Additional Sessions Judge was right in,'overruling these objection regarding its maintainability. 8. It is then argued that the learned Additional Sessions Judge acted beyond that court's powers when it was held that there were no sufficient reasons for the order of attachment and the subsequent appointment of receiver. The argument is that under S.146(1), it is the subjective satisfaction of the Magistrate that the case is one of emergency that confers on him the jurisdiction to attach the property in dispute. There is some weight in the contention. From the language of S.146(1), it appears that the question whether an emergency exists which justifies the attachment of property is a matter within the discretion of the Magistrate and unless there are strong reasons, the exercise of discretion is not expected to be interfered with in revision. At the same time, since attachment causes interference with the possession of parties, certain amount of caution is required and the power should not be exercised unless the circumstances of the case warrant such a procedure. However, the propriety of the order of attachment does not arise for consideration in the instant case, since the said order is otherwise unsustainable for the reason that follow. 9. The learned Additional Sessions Judge has held that in the instant case, the order of attachment does not conform to the requirements of S.146 (1) of the Code of Criminal Procedure. The conclusion seems to be well-founded. The order of the Magistrate extracted above shows that it is a composite order initiating proceedings under S.145 (1) and at the same time attaching the subject of dispute on the ground that there is an emergency. In other words, the initiation of proceedings under S.145 (1) and the attachment of property are seen effected by the same order This is not warranted by the provisions of S.146 (1). S.146 (1) begins with the words: "If the Magistrate at any time after making the order in sub-section (1) of S.145. In other words, the initiation of proceedings under S.145 (1) and the attachment of property are seen effected by the same order This is not warranted by the provisions of S.146 (1). S.146 (1) begins with the words: "If the Magistrate at any time after making the order in sub-section (1) of S.145. The expression "after making the order" makes it clear that proceedings under S.145 (1) should precede the order attaching the property. S.146 (1) does not contemplate a simultaneous exercise of jurisdiction under S.145 (1) and S.146 (1). The order under S.145 (1) becomes complete only when the Magistrate puts his signature therein. It is only thereafter that he is expected to consider whether it is a case of emergency requiring attachment of property. Since the order attaching property in the instant case did not satisfy the above requirements, it was rightly set aside by the Additional Sessions Judge. Now that the preliminary order under S, 145 (1) has been confirmed by the Additional Sessions Judge, it is open to the Magistrate to consider whether a case of emergency exists and whether the property should be attached and if he is so satisfied it is upto him to issue fresh order of attachment followed by appointment of receiver. The revision petition is dismissed with the above observation.