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Hasmukh J. Jhaveri Vs. Shella Dadlani and Another - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 667 of 1979
Judge
Reported in(1981)83BOMLR196; 1981CriLJ958; 1981MhLJ304
ActsConstitution Of India - Article 134
AppellantHasmukh J. Jhaveri
RespondentShella Dadlani and Another
Excerpt:
.....under sub-clause (1) of section 145 of the code the only requirement about the satisfaction of the learned magistrate pertains to the existence of a dispute as likelihood arising out thereof to cause breach of peace, concerning the property in question, in which event the preliminary order can be recorded and it is thereafter, and may be immediately that an order under section 146 can well be recorded, if there is a further satisfaction about the existence of emergency. the existence of emergency as contemplated by section 146 has some reference, to a limited extent, to the provisions contained in section 145, as now it is well settled that both the provisions are to be read and blended together. a further change obviously is that in the earlier provision in respect of the latter two..........this conclusion at this point as it is not necessary to consider whether the impugned order of the learned magistrate is interlocutory or not. it is obviously because the matter is now seized of this court and there may not be those limitations which are sought to be placed on the revisional powers of the sessions court vis-a-vis an interlocutory order and in a fit case this court is empowered under the inherent powers to upset the impugned order. it is from that point to view. i am of the opinion that when the impugned order is manifestly unjust and untenable in law, this court will be justified in exercising its discretion under the inherent powers under section 482 of the code and cannot assume the role of a salient and passive spectator. once this premise is accepted, then the.....
Judgment:

Kotwal, J.

(Paras 1 to 20 are omitted.)

21. I would have pulled down the curtain on the proceeding with this conclusion at this point as it is not necessary to consider whether the impugned order of the learned Magistrate is interlocutory or not. It is obviously because the matter is now seized of this Court and there may not be those limitations which are sought to be placed on the revisional powers of the Sessions Court vis-a-vis an interlocutory order and in a fit case this Court is empowered under the inherent powers to upset the impugned order. It is from that point to view. I am of the opinion that when the impugned order is manifestly unjust and untenable in law, this Court will be justified in exercising its discretion under the inherent powers under Section 482 of the Code and cannot assume the role of a salient and passive spectator. Once this premise is accepted, then the question as to whether the learned Sessions Judge should have interfered in the revisional jurisdiction must pale in the background, though, I would hasten to add that there is abundant justification in the interference by the learned Additional Sessions Judge even in the revisional jurisdiction. However, as Shri Desai, the learned counsel, has fully canvassed that point and as such with due deference to him as also it is stated at the Bar that the Sessions Court is confronted with this aspect time and again, I deem it proper and desirable to refer to it thought not in all its details as I am firm in my opinion that in reality it is hardly capable of creating any controversy.

22. To say that the attachment of the flat and its sealing is an interlocutory order obviously would be, even ex facie misconception of the notion of an 'interlocutory order'. I can derive full reinforcement to this conclusion on the basis of certain observation in some of the judicial pronouncements which the Court would be well justified to rely upon for furnishing an analogy and guidelines. What is this concept of 'interlocutory order' has been highlighted in Amar Nath v. State of Haryana, : 1977CriLJ1891 , which is reiterated in Madhu Limaye v. State of Maharashtra, : 1978CriLJ165 and we have also in that category a recent pronouncement in V. C. Shukla v. State, : 1980CriLJ690 . The ratio is well enunciated and really speaking it is not necessary to have a deeper probe, though some aspects can be incidentally referred to in that limited field. In Amar Nath's case (supra) on the basis of the F.I.R. 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 a 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 an 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. A full survey and resume of all the relevant aspects vis-a-vis the concept of interlocutory order was taken. 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 any 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. A reference was made to the ratio of certain other decisions. The category of order merely of procedural nature without in any manner affecting the rights and liabilities of the parties has been illustrated, such as orders summoning witnesses, adjourning cases, calling for reports, discovery, production and inspection of documents etc. Reliance was also placed on the ratio in Mohanlal Maganlal Thakkar v. State of Gujarat, : 1968CriLJ876 , which would set at rest the controversy that is sough to be raised on the ground that the order does not finally decide the proceeding but the controversy still remains alive and even such a contingency could be taken out of the pale of an interlocutory order; when it was observed as (at P. 882 of 1968 Cri LJ) :

'Finality of an order could not be judged by the correlating that order with controversy of the parties. The fact that the controversy still remains alive was irrelevant.'

Making a reference to certain other decisions, it was also indicated that an order granting temporary injunction may not necessarily be an interlocutory order as it decides some right of the parties; though the said observations arose out of the provisions of the Letters Patent of the High Courts in India. In the final analysis, the Supreme Court observed and held as (at P. 1896 of 1977 Cri LJ) :-

'...... it cannot, therefore, be said that the appellants were not at all prejudiced or that any right of theirs was not involved in the impugned order ..... The order was undoubtedly a matter of moment and valuable right of the appellant had been taken away by the Magistrate in passing the order, prima facie in sheer mechanical fashion without applying his mind. We are, therefore, satisfied that the order impugned was one which was a matter of moment and it did involve a decision regarding rights of the appellants.'

23. In Madhu Limaye's case : 1978CriLJ165 (supra) the concept of interlocutory nature of an order which was high-lighted in Amarnath's case : 1977CriLJ1891 was

reiterated 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 as (at p. 170 of 1978 Cri LJ :-

'... But in our judgment 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 under Chap. XXIX of the Code. 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 ...... On the one hand, the legislature kept intact the revisional power of the High Court and, On the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression 'interlocutory order' as invariably being converse of the words 'final order' There may be an order passed during the course of a proceeding which may to be final in the sense noticed in Kuppuswami's case, but it may not be an interlocutory order - pure or simple. Some kinds of orders may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders, They may not be final orders for the purposes of Article 134 of the Constitution, Yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397(2) ......'

24. Bearing in mind the guidelines enunciated in the ratio of various judicial pronouncements, the scheme of the Code in that behalf, the object for enacting or incorporating the said provision and the basic concept of the term in question, the following propositions would logically follow. -

(1) That the term 'interlocutory order' has been used in a restricted sense and not in a broad or realistic sense.

(2) 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 high-light 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.

(3) 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.

(4) 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.

(5) So also, 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.

(6) Therefore, the fact that the main proceeding is kept alive that does not ipso facto give a stamp to several such orders as 'interlocutory order'.

(7) Consequently it is not permissible to equate the expression 'interlocutory order' as invariably being the converse of the term 'final order'.

(8) An order of moment would obviously be lifted out of the sweep of the said terminology.

(9) 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.

(10) An order which -

(a) decides; or

(b) even touches the important rights or liabilities of the parties;

cannot be said to be interlocutory.

(11) An order which -

(a) substantially affects the rights of the parties; or

(b) decides certain rights of the parties;

cannot be termed as 'interlocutory'.

(12) So also, 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'.

25. Applying various tests laid down in the said guidelines, it would be manifest that an order under section 146 of the Code of Criminal Procedure, directing attachment and sealing of the flat can never be embraced by the term 'interlocutory order'. Such an order obviously is not interim or temporary, pure and simple. It also cannot be said to assume a character of merely a step-in-aid of the procedure. This obviously is an order of moment. In addition thereto it is further clear, as enunciated by the Supreme Court in the ratio of the decisions already cited that it is not only an order, affecting the rights of the parties, but even an order affecting any particular aspect of the proceeding can be lifted out of the sweep of interlocutory order. It would thus follow as a logical corollary that the impugned order directly affects the rights of both the parties. Thus if the authority rejects the application of the applicant, who pleads existence of emergency and declines to pass order of attachment and sealing, then it would certainly affect the right of the applicant. In the other eventuality if such an application is granted then it is bound to affect the rights of the respondent therein. The resultant consequence in either contingency also furnishes some support to this view. If the order directing attachment and sealing of the flat is issued and which order is implemented, then the other party is obviously handicapped and is put to a loss even though it may have a sound case on merits vis-a-vis the question of possession, though irrespective of the title. Now this is more so inasmuch as under sub-clause (1) of Section 145 of the Code the only requirement about the satisfaction of the learned Magistrate pertains to the existence of a dispute as likelihood arising out thereof to cause breach of peace, concerning the property in question, in which event the preliminary order can be recorded and it is thereafter, and may be immediately that an order under section 146 can well be recorded, if there is a further satisfaction about the existence of emergency. In the preliminary order itself it is stipulated that the parties are to be summoned to appear before the learned Magistrate and to put forth their claim in respect of fact of actual possession of the subject of dispute, which would mean that by that time no final opinion could be formed by the learned Magistrate in that behalf. It is against this backdrop that one has to consider the effect of attachment and sealing of the flat essentially dependent mainly on the existence of emergency. In that event the respondent, who is to be thrown out, will be jeopardised in every respect and in a given case it may ultimately be found that the applicant therein who had moved the learned Magistrate, may not have even a semblance of right to the property even in the restricted field about the question of possession. The counter part of this would be of equal relevance. If the learned Magistrate declines to pass any such orders and if the applicant therein has really a genuine case, then it would entail into a consequence of wrongful person continuing in possession even for an interim period till the disposal of the main petition. Though this may not be of much importance inasmuch as the requirement of Section 146 is only vis-a-vis the existence of emergency and, therefore, it is in that limited field that I have considered this other side of the coin.

26. Then we have to consider another facet which logically flows out of this situation. If the learned Magistrate declines to pass an order of attachment and sealing of the flat and if by chance his assessment of the situation about the existence of emergency is wrong, then there is always a potential danger, if in reality the emergency exists. In that event in a given case, the situation really may be so explosive as even a spark would be enough to ignite and explode the situation in which event refusal to pass an order would obviously entail into affecting one of the most important aspects of the proceeding. The existence of emergency as contemplated by Section 146 has some reference, to a limited extent, to the provisions contained in Section 145, as now it is well settled that both the provisions are to be read and blended together. The concept of emergency, therefore, suggests the existence of a dispute which is likely to entail into breach of peace and the urgency is so much that if emergent orders are not passed then the dispute which exists is likely to cause breach of peace at any moment making the situation quite explosive. That is how there is nexus between the situation of emergency and the existence of dispute with likelihood of breach of peace.

27. One of the categories envisaged in the ratio of the Supreme Court decisions (supra) relates not only to the order affecting the rights of the parties but also affecting particular aspect of the proceeding or the trial. It is in this context worth nothing the scheme of the relevant provisions and the change brought about by coming into operation of the new Code. In the old Code, order to be passed on account of emergency was placed in the third provision to sub-clause (4) of Section 145. Further that order could be passed at any time pending his decision under that section. The attachment of the subject of dispute was contemplated by only this contingency in that section. As against this, it is in Section 146 that the remaining two categories about the attachment of the property were included viz., that the Magistrate is of the opinion that none of the parties was in such possession or the Magistrate is unable to decide as to which of them was then in such possession and it was further stipulated that he had to refer the matter to the competent Civil Court. In contrast to this, new Code makes some changes. The category of emergency is lifted from Section 145 and is transposed to Section 146 where all the three categories when the property can be attached are clubbed together and those include about the existence of emergency, the Magistrate's finding that none of the parties was in possession or his inability to decide as to which party was then in such possession. A further change obviously is that in the earlier provision in respect of the latter two categories, the Magistrate was required to refer the matter to a competent Civil Court which is not necessary under the new Code as this has now been well settled as to what is meant by the terminology 'until a competent Court has determined the rights of the parties' by the ratio in Mathuralal v. Banwarilal, : 1980CriLJ1 , which is also an authority on the point that the provisions of Sections 145 and 146 are to be read together, wherein the Supreme Court has held that it is not necessary to refer the matter to the Civil Court as the authority contemplated therein is the learned Magistrate himself. Further important change is that under the new Code such an order can be passed only after making a preliminary order under Section 145(1) of the Code of Criminal Procedure.

28. A combined reading of all these features would high-light and project some material aspects. In the first instance, an order under Section 146 holding the existence of emergency can be passed only after the preliminary order is passed under section 145(1). This would again mean that it is only after the satisfaction of the learned Magistrate as contemplated by Section 145(1) that such emergent orders can be passed. This in turn would mean that it is founded on an application of judicial mind and the preliminary order as well as emergent order both can be equated as being of judicial character, which in turn would mean that it cannot be an arbitrary matter. This would logically lead to another inference that at least to a limited extent the justification for the satisfaction of the learned Magistrate on both the counts cannot be immune to judicial review ability, though in the limited field. This is on analogy with the ratio in Khudiram Das v. State of West Bengal, : [1975]2SCR832 , where the Supreme Court while dealing with the order under the Maintenance of Internal Security Act, observed as (at P. 453 of Cri LJ) :

'The power of detention is not a quasi-judicial power. But the subjective satisfaction of the detaining authority is not wholly immune from judicial review ability. The Courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny ........'

I am making only a limited use of these observations. It would thus be clear that the forum of the Higher Court can to some extent probe into the question as to whether the facts justify the satisfaction of the learned Magistrate. This is in contrast to the earlier Code wherein the Magistrate would pass any such order i.e. even before passing of the preliminary order. Consequently judicial scrutiny of an order on such important aspect has also some relevance, though in the limited field, in the context of the contrast.

29. It would also not be out of place to observe as has been enunciated in Madhu Limaye's case : 1978CriLJ165 (supra) that the revisional powers of the Sessions Court and the High Court under Section 397 of the Code are kept intact and are not wiped out and the query posed was that if every matter short of final order is to be treated as interlocutory order, then the revisional powers which are expressly kept intact, would be brought to a stand-still would practically be reduced to nullity. It cannot be underestimated that though the impugned order in such matters can be subject of scrutiny under the inherent powers under section 482 of the Code, yet by the very concept such powers carry with them an element of discretion. In other words, these are only discretionary powers and it is well settled that the Court is not bound to interfere notwithstanding an obvious illegality staring in the face unless and until it squarely falls in either of the three categories as envisaged by Section 482 of the Code, as also the Court feels that exercise of discretion is absolutely essential. The concept of discretionary nature obviously wipes out the character of obligatory nature and as such a party cannot claim as of right and insist on interfering with the order though in a fit case Court is very much likely to upset the impugned order. So also, the discretionary nature is likely to carry with it some element of uncertainty. As against this, the revisional powers, though to be utilised in a restricted sense, about examining the correctness, illegality or propriety of the order, yet can be well utilised with some force and certainty in respect of such impugned orders, if of course, the finding or order falls in either of the three categories and in which event the aggrieved party can certainly impress upon the Court to interfere with the impugned order with more certainty. It is against this background that the aspect of judicial scrutiny of the impugned order has to be considered and, therefore, this, in my opinion, again adds to relevant features in solving the problem in favour of holding that the impugned order cannot be an interlocutory order.

30. There is another tinge to this aspect. The existence of a dispute with the likelihood of breach of peace concerning the property is the core of this proceeding and if the situation is of emergency, then it becomes an aggravated form. As I have stated earlier all the three categories where the attachment can be directed are clubbed together and are placed separately in a distinct section viz., 146. Therefore, even reading that section by itself, it would mean that the order in question is not purely temporary or interim one. Further the correctness or legality or propriety of the said order is liable to be subjected to judicial scrutiny. If it is considered along with the provisions of Section 145 then also it would indicate in no uncertain terms that the scheme of the Code vis-a-vis the provisions under title 'dispute as to immovable property' in Chapter X has some definite pattern. The fabric has different layers inter-woven, common thread being existence of the dispute which is likely to cause breach of peace. One of the important textures relates to passing of the preliminary order while other equally important relates to passing of the emergent order about the attachment etc. Though blended together, each has its own individual existence, impact and repercussion. It is through this fabric that different layers are unfolded, giving legislative intent in enacting these provisions in this Chapter. It would thus be clear that all such items are, however, important aspects of the proceeding and any order touching or affecting or adjudicating any such aspect i.e. any important layer of this fabric, will have to be taken out of the pale of the interlocutory nature. This would be either in addition to or apart from affecting the rights of the parties. It is in this context that one of the categories enunciated by the Supreme Court in the ratio discussed earlier viz. that an order ceases to be an interlocutory one if it affects even any particular aspect of the proceedings has got to be considered.

31. It is also worth noting that one of the contingencies contemplated in the ratio of the said decisions (supra) is that the order may even touch the important rights or liabilities of the parties or even an important and integral aspect of the proceeding. This is certainly of a lower degree than substantially affecting or deciding rights of the parties or any aspect of the proceeding and even then it can be lifted out of the concept of interlocutory nature. If that be so, then in the instant case, the matter is raised to a higher pedestal when not only it touches, but substantially affects the rights of the parties as also a particular and important aspect of the proceeding. It can also be said with justification that not only it affects such right or aspect, but in a sense it practically decides or adjudicates any such right or the fate of a particular aspect of the proceedings. Any of these categories squarely embrace the facts of the instant case.

32. It is also not of place to note that this aspect of the proceeding has its own peculiar feature in contrast to other. Thus, sub-clause (3) of Section 145 stipulates the mode of service of summons and the order. The same applies to sub-clause (6)(b). Some of the other clauses of Section 145 indicate that those are merely steps-in-aid in the matter of procedure for conducting the proceeding. Attachment and sealing of the property is obviously taken out of the sweep of such procedural aspect and becomes practically a substantive plank. In any event and by any yardstick and in the minimum, such an order would unmistakably and squarely fall in the category of an 'intermediate' order which is not a merely procedural one, but substantially affects the rights of the parties as also materially affects the particular and integral aspect of the proceeding, and which thus may fall in between a purely interim or temporary order without in any way affecting any right or aspect, and the final adjudication of the main proceeding and thus it would obviously be not an interlocutory order. With equal certainty it can be said to be an order of moment.

33. In my opinion, therefore, the impugned order successfully survives the scrutiny on the touch-stone of all these tests and guidelines and that it does not bear the stamp of finality in the strict sense vis-a-vis the proceeding or the proceeding is kept alive there being no final adjudication as such on such features which must pale in the background whereas the real nature and concept of the order which is far away from an interlocutory one would be lifted and placed in the forefront. In the final analysis, therefore, the impugned order cannot be termed and styled as 'interlocutory order' by any yardstick.

34. Rule discharged.


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