Ram Deo v. State Of Uttar Pradesh — 1982 DIGILAW 937 (ALL)

JUDGMENT P. N. Goel, J. 1. BY means of this application under section 482 CrPC the applicants assail the order dated 24-3-1982 passed by the Sessions Judge, Allahabad in criminal revision no. 194 of 1982 (copy annexure 7). 2. FACTS sufficient for the disposal of this application are these : There is an area of land measuring 124 bighas and 10 biswas in village Pali Karanpur, police station Sarai Inayat, Tahsil Phoolpur, district Allahabad. Every year this land goes under water during rainy season. This land was given to opposite parties nos.2 to 23 for a period of 5 years ending June, 1981. When the land came out of water, the Sub-Divisional Magistrate, Phoolpur, directed the opposite parties nos.2 to 23 not to cultivate the land. In accordance with the resolution of the Land Management Committee dated 29-10-1981, the land was allotted to applicants nos.1 to 36 along with 15 others. As the 15 other persons did not accept the land allotted to them, it vested in the Gaon Sabha, Pradhan of Gaon Sabha is applicant no. 37. There was dispute about the crop which stood in the land in or about February, 1982. On 19-2-1982, the Station Officer, Police Station Sarai Inayat submitted a report to the Sub-Divisional Magistrate Phoolpur (copy annexure 4) that there was dispute between the parties in respect of the harvesting of the crop, that there was apprehension of berach of peace and that therefore the crop be attached and given in the custody of a supurdar. The Magistrate felt satisfied by the police report and consequently on 20-2-1982, the Magistrate passed a composite order under sections 145 (1) and 146 (1) and (2) of the Code of Criminal Procedure (copy annexure 5). First he passed order under section 145 (1) and then he passed order under section 146. The supervisor qanoongo was appointed Receiver. Against the order of attachment passed under section 146 (1), Basdeo and others opposite parties 2 to 23 filed criminal revision no. 194 of 1982 before the Sessions Judge, Allahabad. It was contended before him that in view of the provisions of section 397 (2) CrPC the revision was not maintainable. The supervisor qanoongo was appointed Receiver. Against the order of attachment passed under section 146 (1), Basdeo and others opposite parties 2 to 23 filed criminal revision no. 194 of 1982 before the Sessions Judge, Allahabad. It was contended before him that in view of the provisions of section 397 (2) CrPC the revision was not maintainable. In view of the observations made by the Supreme Court in the case of Amar Nath v. State of Haryana, AIR 1977 SC 2185 , the Sessions Judge held that the order of attachment was not an interlocutory order and that, therefore, the revision could be entertained by him and was not barred by the provisions of section 397 (2). On merits the Sessions Judge found that the order of attachment was not a speaking one and that therefore, it had to be quashed. Learned counsel for the applicants has urged that the order of attachment in the instant case was an interlocutory order, that the revision was not competent before the Sessions Judge and that therefore, the Sessions Judge was not competent to allow the revision and set aside the order of attachment passed by the Magistrate. On the other side the learned counsel for the opposite parties has on the basis of the observations made in the case of Amar Nath attempted to show that the order in question was not an interlocutory order. 3. PRIOR to the Code of Criminal Procedure, 1973, there was no provision in the old Code of Criminal Procedure like the one contained in sub-section (2) of section 397. Sub-section (2) of this section reads as follows ;- "(2). The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding". 4. SUB-section (1) of Section 297 empowers the High Court or a Sessions Court to call for and examine the record of any proceeding before any inferior criminal court, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceeding of such inferior court. In other words this subsection has given revisional power to the High Court or the Sessions Court. In the case of Amar Nath, the Supreme Court has indicated the reasons for enacting sub-section (2). 5. In other words this subsection has given revisional power to the High Court or the Sessions Court. In the case of Amar Nath, the Supreme Court has indicated the reasons for enacting sub-section (2). 5. THE main controversy is whether an order of attachment under section 146 (1) is an interlocutory order or not. Under section 146 (1) the Magistrate at any time, after making an order under section 145 (1) can pass an order of attachment of the subject of dispute in 3 contingencies, viz (i) where he considers the case to be one of emergency, or (ii) If he decides that none of the parties was in possession on the date of the passing of the preliminary order under section 145(1), or (iii) if he is unable to satisfy himself as to which of them was in possession within 2 months of the passing of the preliminary order. 6. IN the instant case as the Magistrate passed a composite order under Section 145 (1) and Section 146 (I), the last 2 contingencies are not applicable. It means that the Magistrate passed the order of attachment because be considered that the matter was one of emergency. Expression "interlocutory order" occurring in Section 397 (2) has been considered in 3 cases by this Court prior to the decision of the Supreme Court in the case of Amar Nath. Before dealing with the case of Amar Nath, it appears proper to make a reference to the said 3 cases of this Court. They are : (i) Bindbasni v. State of U. P., 1976 AWC 291 . In this case the Sub Divisional Magistrate passed an order under Section 107/111 CrPC. The Sessions Judge dismissed the revision against the said order. Then a second revision was filed in this Court. The Single Judge referred the matter to the larger Bench. The Division Bench then considered expression "interlocutory order" and observed as follows :- "To sum up the propositions laid down by the above authorities, the test in determining the final or interlocutory nature of an order is one and the same both in civil as well as criminal cases. That test is whether or not the order in question finally disposes of the rights of the parties or leaves them to be determined by the Court in the ordinary way. That test is whether or not the order in question finally disposes of the rights of the parties or leaves them to be determined by the Court in the ordinary way. If the order does tot finally dispose of the rights of the parties and the matters in dispute and leaves the suit or case still alive, suit in which the rights of the parties have to be determined the order will remain interlocutory irrespective of the stage at which it is passed and also irrespective of the conclusive decision of the subordinate matters with which it deals. Applying this test to an order passed by a Magistrate under Secs.107/111 CrPC that order is nothing but interlocutory because it is passed when the Magistrate is of opinion that the information received by him to the effect that any person was likely to commit breach peace or to disturb public tranquility etc. was credible. Acting upon that information the Magistrate simply calls upon the person concerned to show cause why he should not be bound down in the prescribed manner. Neither rights of the parties are decided at that stage nor the matter in dispute is finally disposed of". (ii) G. D Mukerji v. Shyam Lal Tewasi, 1978 ACrR 468 in this case the proceedings under Section 107 CrPC were converted into one under Section 145 CrPC on 7-5-1977. On 30-9-1977 an affidavit was filed by G. D. Mukerji praying for attachment of the property. The Magistrate called for a report from the police. On 1-11-1977 Sri G. D. Mukerji filed another affidavit praying for attachment of the property as there was imminent danger. The Magistrate then passed order for the attachment of the property. It was bald that the order of attachment was an interlocutory order. The relevant observations made by the Court read as follows: "With regard to the second question, the position appears to be very clear that under Section 397 (2), CrPC a Court of revision has no powers to interfere with an interlocutory order passed in any appeal, enquiry, trial or other proceedings. There can be no dispute that the impugned order Is an interlocutory order. The proceedings under Section 145 CrPC are still pending before the City Magistrate. They have not been concluded yet. There can be no dispute that the impugned order Is an interlocutory order. The proceedings under Section 145 CrPC are still pending before the City Magistrate. They have not been concluded yet. As such in my regional powers it is not open to me to interfere with the order of the City Magistrate dated 5-11-1977". (iii) Smt. Prem Lata v. Ram Lubahya, ]]978 Criminal Law Jou rnal!822 Alld. = 1978 Alld. Cr. Rulings 343. In this case it was held that an order of attachment under Section 146 (1) CrPC on the ground of emergency was an interlocutory order and that an order of attachment under the said section on any of the other two grounds mentioned therein was not an interlocutory order. 7. REFERENCE may now be made to the case of Amar Nath v. State of Haryana (supra). In this case an incident took place in April 1976 in which 3 persons died. First information report was lodged with the police. The police submitted final report against the accused persons. The complainant filed a revision against the order of the Magistrate releasing the accused persons. The Additional Sessions Judge dismissed the revision. In this way the accused persons acquired valuable right of not being put on trial. The complainant then filed a complaint before the Magistrate which was dismissed on merits. In revision the Sessions Judge set aside the order of dismissal and ordered further enquiry. In pursuance of this order the Magistrate summoned the accused persons straightaway. The accused persons approached the High Court and the High Court held that the order' summon- ing the accused persons was an interlocutory one. The Supreme Court did not accept the view taken by the High Court and directed the High Court to decide the revision on merits. In the circumstances of the case mentioned above, the Superme Court observed : "It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. This was undoutedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It cannot, therefore, be said that the appellants were not at all prejudiced, or that any right of theirs was not involved by the impugned order. This was undoutedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It cannot, therefore, be said that the appellants were not at all prejudiced, or that any right of theirs was not involved by the impugned order. It is difficult to hold that the impugned order summoning the appellants straightway was 'merely an interlocutory order which could not be revised by the High Court under, sub-sections (1) and (2) of Section 397 of the 1973 Code. The order of the Judicial Magistrate summoning the appellants in the circumstances of the present case, particularly having regard to what had preceded was undoubtedly a matter of moment and a valuable right of the appellants had been taken away by the Magistrate in passing an order prima facie in sheer mechanical fashion without applying his mind". It will be noticed that the Supreme Court in the special circumstances of the case held that the order of the Magistrate summoning the accused persons was not an interlocutory order. In the case before me there are no such circumstances as existed in the case of Amar Nath. 8. THE Supreme Court first of all indicated the history leading to enactment of sub-section (2) of Section 397. THE Supreme Court then indicated the scope of the expression 'interlocutory order' in the following words :- "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. 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 substantiality 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 revison 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." THE Spureme Court proceeded to observe certain instances in the following manner:- "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". The above instances are simply illustrative and not "exhaustive. In my opinion the yard-stick laid down by the Supreme Court of an order which has to be considered interlocutory is not opposed to the view expressed by this Court in the 3 cases cited above. 9. LEARNED counsel for the applicants then referred to the case of Shishu v. State of Haryana, 1982 Criminal Law Journal 124. In this case the observations of the Supreme Court in the case of Amar Nath (supra) were duly considered and it was held that an order off attachment under section 146 (1) is interlocutory in nature and no revision is maintainable against such order. 10. A glance at the provisions of the Code of Civil Procedure relating to interim injunctions and attachments before judgment will indicate that an order of attachment under section 146 (1) CrPC is quite distinct in nature. 10. A glance at the provisions of the Code of Civil Procedure relating to interim injunctions and attachments before judgment will indicate that an order of attachment under section 146 (1) CrPC is quite distinct in nature. The main purpose of an attachment under section 146 (1) is two fold-(i) the property should remain intact for the benefit of the right claimant; and (ii) breach of peace between the parties may be avoided. In case the property is not attached there is every apprehension of the breach of peace. Correctly speaking there can be marpeet between the parties. It is evident that an order of attachment under section 146 (1) is made subsequent to the passing of an order under section 145 (1) and prior to the final decision of the case under section 145 (4) read with sub-section (6). It is further evident that an order of attachment under section 146 (1) does not decide or touch important rights or liabilities of the parties. It does not go to decide rights of any party to the proceeding. 11. FOR what has been discussed above I am of the opinion that the order of attachment under section 146 (1) in the instant case is an interlocutory order against which revision is barred by section 397 (2) and as such the learned Sessions Judge was in error in holding that the revision filed before him was competent. The Sessions Judge should have better rejected the revision in view of the provisions of section 397 (2). 12. AS the question involved goes to the root of the matter i. e. the competence of the jurisdiction of the Sessions Judge to entertain revision, I am of the opinion that it is a case of the abuse of the process of the court and, therefore, this Court would be justified in setting aside the order of the Sessions Judge in question under section 482 CrPC. Sri L. P. Singh, learned counsel for the opposite parties attempted to indicate that on merits the order passed by the Sessions Judge was justified. In my opinion the order of the Sessions Judge cannot be maintained on this ground because the Sessions Judge did not have jurisdiction to entertain the revision and thereby to enter upon the merits of the case. 13. In my opinion the order of the Sessions Judge cannot be maintained on this ground because the Sessions Judge did not have jurisdiction to entertain the revision and thereby to enter upon the merits of the case. 13. THE position that follows is that the order passed by the Sessions Judge in revision has to be set aside. 14. THE application is allowed and the order of the Sessions Judge, Allahabad dated 24-3-1982 setting aside the order of the Sub-Divisional Magistrate for the attachment of the subject matter of dispute under section 146 (1) and appointing Receiver under section 146 (2) is quashed. THE order dated 20-2-1982 passed by the Sub Divisional Magistrate, Phoolpur, directing attachment of the property and appointing Receiver under section 146 (1) and (2) CrPC shall stand. THE Magistrate will attempt to dispose of the proceedings under section 145 CrPC as early as possible. Application allowed.