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2003 DIGILAW 238 (CHH)

MAHANT LAL DAS v. JAITRAM

2003-11-18

L.C.BHADOO

body2003
ORDER As per Hon'ble Shri L. C. Bhadoo, J. 1. The applicant/petitioner has preferred this criminal Revision under Section 397/401 of the Cr. P.C. being aggrieved by the order dated 19-4-2003 passed by the Additional Sessions Judge, Janjgir, in Criminal Revision No. 443/2002 arising out of the order dated 30-11-2002 passed by the Sub Divisional Magistrate, Janjgir in Criminal Case No. 128/2002. 2. Brief facts leading to 'filing of this criminal revision are that the applicant moved an application before the Sub Divisional Magistrate Janjgir under Section 145 read with Section 146(1) of the Cr. P.c. alleging that the applicant was every year sowing the paddy crop in the agricultural land bearing Khasra No. 314/6, area 15.65 acre of village Bodsar, Tehsil Janjgir. This year i.e. 2002 the applicant also has sown the paddy crop which was ready for reaping. 3. The non-applicants are threatening the applicant to dispossess and reap the standing crops and on account of it there is apprehension of breach of peace. On this application the learned Sub Divisional Magistrate asked for the Station House Officer, Police Station Janjgir to submit his report, in turn the Police submitted the report on 27-11-2002. The applicant again submitted an application before the Sub Divisional Magistrate on 28-11-2002 for orders to get an enquiry conducted by an impartial officer. The applicant also submitted affidavit. On this, the learned Sub Divisional Magistrate issued show cause notices to the parties and asked to file their return and ultimately on 30th November 2002 the learned S.D.M. passed on order stating that he was not satisfied with the report of the S.H.O. dated 27-11-2002 and he was satisfied that there was apprehension of breach of peace between both the parties on account of the above mentioned land and there is likelihood that both the parties may quarrel with each other, therefore, an emergent situation has arisen, as such the learned Magistrate passed on order of attachment of the disputed land and directed the S.H.O., Police Station Janjgir to take into possession the crops. 4. Against this order the non-applicants preferred a revision before the Additional Session Judge Janjgir and the learned Additional Sessions Judge after hearing the parties allowed the revision by the impugned order and set-aside the order passed by the learned Sub Divisional Magistrate under Section 146(1) of the Cr. 4. Against this order the non-applicants preferred a revision before the Additional Session Judge Janjgir and the learned Additional Sessions Judge after hearing the parties allowed the revision by the impugned order and set-aside the order passed by the learned Sub Divisional Magistrate under Section 146(1) of the Cr. P.C. and remanded the case with direction to proceed with the proceeding under Section 145 of the Cr. P.C. in accordance with law. 5. I have heard the learned counsel for the parties. 6. The first objection raised by the learned counsel for the applicant is that the order dated 30th November 2002 passed by the Sub Divisional Magistrate under Section 146(1) of the Cr. P.C. being an interlocutory order, the learned Additional Sessions Judge was not within his right to entertain the revision looking to the bar contained in Section 397 (2) of the Cr. P.C. 7. On the other hand, the learned counsel for the non-applicants submitted that the order passed under Section 146(1) of the Cr. P.C. does not come within the term 'interlocutary order'. In this connection if we look into Section 146 of the Cr. P.C. which provides that "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 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.” 8. Similar question came up before the High Court of Bombay for consideration in the matter of Hasmukh. Jhaveri Vs. Sheila Dadlani and Another1 and after discussing the law laid down by the Hon'ble Supreme Court in the case of Amar Nath Vs. State of Haryana and also in the case of Madhu Limaye Vs. State of Maharashtra3. Similar question came up before the High Court of Bombay for consideration in the matter of Hasmukh. Jhaveri Vs. Sheila Dadlani and Another1 and after discussing the law laid down by the Hon'ble Supreme Court in the case of Amar Nath Vs. State of Haryana and also in the case of Madhu Limaye Vs. State of Maharashtra3. The Hon 'ble Supreme Court laid down the principle about the nature of the order whether the particular order amounts to interlocutory order or final order. 9. In Amar Nath 's case2 (Supra) "on the basis of the ELR. and on holding investigation, the Police submitted a charge-sheet against some persons except the appellants therein as in the opinion of the police no case was made out against them. The appellants, therefore, were Set at liberty by the learned Magistrate, who accepted the police report. A revision petition filed by the complainant in the Sessions Court met with no success. A private complaint then came to be filed by the complainant against all the accused persons including the appellants which also met with the same fate of dismissal, though on merits. The said order of dismissal was, however, set aside by the Sessions Court and the complaint was revived. The learned Magistrate in pursuance thereof, without holding and directing any enquiry, straightway issued summonses against the appellants which was tantamount to issuance of process with the resultant consequence that the appellants therein were put up for trial. The High Court declined to interfere on the ground that the order of issuing summons was on interlocutory order; which order was upset by the Supreme Court holding that it was a matter of moment and it decided the serious question as to the rights of the appellants to be put on trial and as such was not an interlocutory order and consequently the revision was declared to be competent and holding that an interlocutory order was being equated with an order of purely interim and temporary nature or an order which could be in the nature of an order embracing items which could be steps in aid of the proceeding; whereas the other aspects were lifted out of the purview of such concept. It was specifically observed that order of moment or an order which substantially affects the rights of parties or decides certain rights of the parties could not be said to be an interlocutory and a further category was envisaged which could be treated as intermediate order, which could in proper cases be taken out of the sweep of interlocutory order. " 10. In Madhu Limaye 's case (Supra) the concept of interlocutory nature of an order which was high-lighted in Amar Nath's case was reiterated and in the said case the appellant therein had taken a preliminary objection at the threshold of the criminal proceeding about the jurisdiction of a Court at Bombay and it is in that context, it was observed that when the High Court, declined to interfere with the decision of the said issue which would go to the root of the matter ousting the jurisdiction of the Court and thus had a capacity of terminating the proceeding. However, there is one feature which strikingly occurs during the course of the observation and which has some relevance. The Supreme Court by another limb of reasoning indicated that if any occurrence falling short of finality is to be embraced by term "interlocutory order", then the legislative intent would end into frustration and it was accordingly observed that such an interpretation and universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so 'it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397(1). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the ones in the 1898 Code. 11. In the judgment of High Court of Bombay the following propositions were laid down: (i) That the term "interlocutory order" has been used in a restricted sense and not in a broad or realistic sense. (ii) That it merely denotes an order of purely interim or temporary nature. 11. In the judgment of High Court of Bombay the following propositions were laid down: (i) That the term "interlocutory order" has been used in a restricted sense and not in a broad or realistic sense. (ii) That it merely denotes an order of purely interim or temporary nature. The emphasis in this category is on the word "purely", which would again highlight the concept that the nature of the order must be pure and simple, temporary or interim in character and ostensibly deceptive appearance of a temporary character should not be confused with the real and outright temporary nature. (iii) Such orders pertaining to some matters in the proceeding which merely and purely assume the character of steps-in-aid of the proceeding can be embraced by the said terminology, which again affords a pointer about the nature and categories of the orders that are purely temporary or interim, without actually affecting or even touching substantially any right or material aspect of the proceeding. (iv) Though a stamp of finality to the proceeding or termination of the proceeding may be quite a relevant and important consideration, yet it is not a sole criterion of the test in that behalf. (v) The potential capacity to terminate proceeding or to give it a label of finality is also not the only and conclusive criterion, though it by itself is a relevant feature. (vi) The fact that the main proceeding is kept alive that does not ipso facto give a stamp to several such orders as "interlocutory order. " (vii) It is not permissible to equate the expression "interlocutory order" as invariably being the converse of the term "final order". (viii) An order of moment would obviously be lifted out of the sweep of the said terminology. (ix) Irrespective of the order bearing stamp of finality. there may be an intervening stage which can be called as 'intermediate stage' at which an order may be passed which in turn may be called as "intermediate order", which neither gives the finality to the proceeding nor is purely interim or temporary and as such is not an interlocutory order, but would fall in between and in certain cases such order can be said to be not interlocutory. (x) An order which - (a) decides; or (b) even touches the important rights or liabilities of the parties; cannot be said to be interlocutory. (x) An order which - (a) decides; or (b) even touches the important rights or liabilities of the parties; cannot be said to be interlocutory. (xi) An order which - (a) substantially affects the rights of the parties or (b) decides certain rights of the parties; cannot be termed as 'interlocutory. ' (xii) An order which - (a) adjudicates; or (b) even affects - (i) either the rights of the parties; (ii) even any particular aspect of the trial or the proceeding cannot be also termed as 'interlocutory order'. Ultimately it was held that applying various tests laid down in the said guidelines, it would be manifest that an order under Section 146 of the Cr. P.C. directing attachment and sealing of the flat can never be embraced by the term "interlocutory order." 12. Allahabad High Court in the matter of Shashi Kant & Ors. Vs. XII Additional District Judge & Ors.4 held that: ".......the order passed under Section 146 (1) of the Cr.P.C. attaching the land in dispute IS not an interlocutory order and liable to be questioned in revision before the Sessions Court and held that the word 'interlocutory order' has to be understood and interpreted in the light of the facts and circumstances of such case. In a given case, like the present one, apparently the order may appear to be interlocutory but if the veil is lifted its real nature and import may be such that it may not amount to interlocutory order. and also Allahabad High Court in the matter of Ram Komal Vs. IVth Addl. District Judge, Basti and others5, held that: "the order passed under Section 146(1) of the Cr.P.C. attaching the land is not an interlocutory order." 13. Similarly, the High Court of Madhya Pradesh in the matter of Kartik Gongaram Choudhary Vs. Jagtu and others6 and in the matter of Sureshchandra Bhagirath Vs. Sitabai W/o Bhagirath and others7 held that the order passed under Section 146(1) of the Cr.P.C. is not an interlocutory order. 14. Therefore, in view of the above law laid down by the Hon'ble Apex Court and other High Courts, I am of the opinion that the order dated 30th November 2002 passed under Section 146(1) of the Cr.P.C. by the learned Sub Divisional Magistrate was not an interlocutory order therefore, the revision before the learned Additional Sessions Judge was not incompetent. 15. 15. Now, coming to the merits of the case, the learned Additional Sessions Judge observed that the Revenue Records and the Police Officer report were in favour of the non-applicants and they were in possession of the land and further observed that based on the Revenue Records and the Police Officer report the non-applicants were in possession of the land and the learned S.D.M. has not passed clear order regarding his satisfaction. A perusal of the order passed by the learned S.D.M. shows that simply the learned S.D.M. has observed that he was not satisfied with the Police report and further observed that there was likelihood of breach of the peace, whereas the Revenue Records and the Police report were in favour of the non-applicants and as per the Police report there was no apprehension of breach of the peace, as such the learned Additional Sessions Judge set aside the order passed by the S.D.M. and a perusal of the order of learned S.D.M. reveals that there was not sufficient material before the S.D.M. to discard and disbelieve the Revenue Records and Police report. The learned S.D.M. passed the order without assigning valid and sound reasons. 16. In view of what has been mentioned above, I am of the opinion that the impugned order of the learned Additional Sessions Judge is based on sound reasoning and the same is legal and perfect. There is no infirmity in the order; as such there is no reason before this Court to interfere with the order of learned Additional Sessions Judge. Therefore, the revision has no force, same fails and liable to be dismissed and it is dismissed. Revision Dismissed.