1. This Criminal Revision Petition, one under secti856n 397 read with S. 401 of the Code of Criminal Procedure (the Code) is directed against the order, dated 24th June 1983 passed by the Sessions Judge at Bidar in Criminal Revision Petition No. 8/1982 allowing the revision and setting aside the order dated 6-2-1982 passed by the Sub-Divisional Magistrate (S.D.M.) in file No. RD/MAC/CR-25/81-82 and remanding the matter to him with a direction to hold a proper enquiry as contemplated by law and dispose of the matter as early as possible.
2. The facts leading up to filing this Revision Petition may briefly be stated as under :
The Sub-Inspector of Police Chitguppa of Humnabad Taluk submitted F.I.R. on 5-1-1982 in Crime No. 3/1982 stating inter alia that there was a dispute between the first party members Smt. Laxmi Bai and Smt. Champa Bai on one hand and the second party member Smt. Sundra Bai on the other in respect of a land bearing S. No. 4/A of Hankuni village in Humnabad Taluk, Bidar District; that on 3-1-1982 he had received a complaint from Sundra Bai, the member of the second party stating that she has been in possession of the disputed land and the members of the first party are trying to dispossess her from the land in question; that the Sub-Inspector of Police visited the village on 3-1-1982 and made an enquiry into the complaint; that during his enquiry he found out that one Eknath s/o Bhavrao was the landlord of the disputed land; that he has 3 major sons Anna Rao, Appa Rao and Bhima Rao and sister Smt. Sundra Bai; that during the enquiry it was noticed that both the parties were claiming ownership and trying to take possession of the disputed land; that there was standing sugarcane crop on the disputed land; that there was every possibility or likelihood of breach of peace and tranquillity and blood-shed for taking possession of the disputed land by the rival parties and on these grounds he requested the S.D.M. to initiate proceedings under section 145 of the Code and the subject of dispute may be attached and kept in the custody and possession of the Court with the standing crop. The S.D.M. passed a preliminary order dated 16-1-1982 and directed both the parties to file their respective claims on or before 22-1-1982. However, the case came up for preliminary hearing on 6-2-82. On that day, the Counsel for the first-party filed certain documents and also affidavits into the Court whereas Sundra Bai filed a petition seeking time on the ground that her Counsel had gone to Hyderabad for treatment. The S.D.M. at this stage passed an order in exercise of his powers conferred upon him under section 146 of the Code attaching the disputed land with the standing crop thereon and appointing the Tahsildar Humnabad as receiver in respect of the disputed land until further orders with certain directions to the receiver as to what he should do concerning the disputed land and the Sugarcane crop standing thereon.
3. The members of the first party carried the matter in revision before the Sessions Judge at Bidar in Criminal Revision Petition No. 8/1982 assailing the validity and the correctness of the said order. The Sessions Judge after hearing the parties and going through the records, passed an order dated 24-6-1983 allowing the revision petition and setting aside the order and remanded the matter to the S.D.M. for fresh disposal in accordance with law.
4. It is the correctness of this order that is sought to be assailed by Sundra Bai, the member of the second party in this Revision Petition.
5. Shri Abdullah, the learned Advocate for the petitioner raised two points. They were :
1) The order passed by the S.D.M. was an 'interlocutory order', not sustainable in view of sub-section (2) of Section 397 of the Code; and
2) It was a just and proper order passed in accordance with law; the correctness of which could not have been assailed on merits also.
6. Sri S. S. Koti, the learned Advocate appearing for 3rd respondent State, has supported the stand taken by the revision petitioner.
7. Per contra, Sri. M. B. Naragund the learned Advocate for the members of the first party, forcefully contended that the order of the S.D.M. cannot be said to be a pure 'interlocutory order'; but on the other hand it is an order of moment and as such the revisional power of the Sessions Judge to revise the said order is not taken away by sub-section (2) of Section 397 of the Code. He further contended that even on merits, the said order cannot be said to be a just and proper order as the S.D.M. did not apply his judicial mind to the facts and circumstances of the case and the material before him. On these grounds he contended that there is no merit in the revision and the same is liable to be dismissed.
8. In view of the contentions urged by the rival parties the points which arise for determination are :
(1) Whether the order of S.D.M. is an interlocutory order, not revisable under section 397 of the Code; and
(2) Whether the said order did not call for interference on merits.
9. Section 397 deals with calling for records to exercise powers of revision. Section 397 omitting the explanation to sub-section (1) reads :
'Section 397(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 as 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.'
xx xx xx (2) 'The powers of revision conferred by sub-section (1) shall be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings.
(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.'
10. It is apparent from sub-section (2) that an interlocutory order is beyond the reach of the revisional powers of the High Court or Sessions Judge. However, the crucial point (which) requires to be determined is what is the connotation of the term 'interlocutory order' as appearing in sub-section (2) of Section 397 of the Code which bars any revision of such an order either by the High Court or by the Sessions Judge The true connotation of the term 'interlocutory order' has come for consideration by the Supreme Court in a number of rulings. I shall refer to a few of them.
11. In Amarnath v. State of Haryana : 1977CriLJ1891 the Supreme Court has had the occasion to deal with the scope of the term 'interlocutory order' appearing in sub-section (2) of Section 397. The real question that came up for consideration by the Supreme Court in this decision was whether an order directing issue of summons is an 'interlocutory order' falling within the ambit of sub-section (2). The facts of the case were :
A complaint was lodged at the police station Butana of Karnal District in respect of an incident which took place in the village Amin on 23-4-1976 in the course of which 3 persons died. The Police registered a case and submitted an FIR which mentioned number of accused persons including the appellants as having participated in the occurrence which resulted in the death of the deceased. The police after holding investigations, submitted a charge sheet against the other accused persons except the appellants against whom the police opined that no case at all was made out. The report was placed before the Judicial Magistrate First Class, Karnal who after perusing the same set the appellants at liberty after having accepted the report. Thereupon the complainant filed a revision petition before the Additional Sessions Judge, Karnal against the order of Judicial Magistrate in releasing the appellants. That revision petition was dismissed. Thereafter, the informant filed a regular complaint before the Judicial Magistrate First Class on 1-7-1976 against all the accused including the appellants. The Magistrate after having examined the complainant and going through the record dismissed the complaint as no case was made out against the appellants. Thereafter the complainant took up the matter in revision before the Sessions Judge who this time accepted the revision petition and remanded the case to the Judicial Magistrate for further enquiry. On 15th November 1976, the Judicial Magistrate on receiving the order of the Sessions Judge issued summons to the appellants straightway. The appellants then moved the High Court under Secs. 482 and 397 of the Code for quashing the order of the Judicial Magistrate mainly on the ground that the Magistrate had issued the summons in a mechanical manner without applying his judicial mind to the facts of the case. The High Court dismissed the petition in limine and refused to entertain it on the ground that as the order of the Judicial Magistrate summoning the appellants was an 'interlocutory order' a revision to the High Court was barred by virtue of sub-section (2) of Section 397 of the Code. The High Court further held that as the revision was barred the Court could not take up the case under section 482 in order to quash the very order of the Judicial Magistrate under section 397(1) of the Code otherwise the very object of Section 397(2) would be defeated.'
12. Thus the matter went up to the Supreme Court by special leave. The Supreme Court interpreting the provisions of Section 397 and in particular the provisions contained in sub-section (2) observed thus :
'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 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 right 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.'
13. In the light of these observations, the Supreme Court considering the order in question observed :
'We are, therefore, satisfied that the order impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. If the appellants were not summoned, then they could not have faced the trial at all, but by compelling the appellants to face a trial without proper application of mind cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the appellants to be put on trial.'
14. In Madhu Limaye v. State of Maharashtra : 1978CriLJ165 the question (that) came up for consideration by the High Court was whether an order framing charge by rejecting the application challenging the jurisdiction of the Court to proceed with the trial is an 'interlocutory order' within the ambit of sub-section (2) of Section 397. The facts of the case were :
In a Press Conference held at New Delhi on the 27th September, 1974 the appellant is said to have made certain statements and handed over a 'Press hand-out' containing allegedly some defamatory statements concerning Shri A. R. Antulay, the then Law Minister of the Government of Maharashtra. The said statements were published in various newspapers. The State Government decided to prosecute the appellant for an offence under section 500 of the IPC as it was of the view that the Law Minister was defamed in respect of his conduct in the discharge of his public functions. Sanction in accordance with Section 199(4)(a) of the 1973 Code was purported to have been accorded by the State Government. Thereupon the Public Prosecutor filed a complaint in the Court of the Sessions Judge, Greater Bombay, Cognizance of the offence alleged to have been committed by the appellant was taken by the Court of Session without the case being committed to it as permissible under sub-section (2) of Section 199. Process was issued against the appellant upon the said complaint.
The Chief Secretary to the Government of Maharashtra was examined on the 17th February, 1975 as a witness in the Sessions Court to prove the sanction order of the State Government. Thereafter on the 24th February, 1975 Shri Madhu Limaye, the appellant filed an application to dismiss the complaint on the ground that the Court had no jurisdiction to entertain the complaint. The stand taken on behalf of the appellant was that allegations were made against Shri Antulay in relation to what he had done in his personal capacity and not in his capacity of discharging his functions as a Minister. Chiefly on that ground and on some others, the jurisdiction of the Court to proceed with the trial was challenged by the appellant. The Sessions Judge rejected all the contentions and framed a charge against the appellant under Section 500 of the Penal Code. The appellant, thereupon, challenging the order of the Sessions Judge in the revision filed by him in the High Court. The High Court without entering into the merits of any of the contentions raised by the appellant, upheld that preliminary objection as to the maintainability of the revision application.
Thus the matter went before the Supreme Court. One of the questions that came up for consideration before the Supreme Court was whether the impugned order was an 'interlocutory order' and as such a revision against that order was barred under sub-section (2) of Section 397. Dealing with the connotation of the term 'interlocutory order' appearing in sub-section (2) of Section 397, the Supreme Court observed :
'Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'.
xx xx xx xx But in our judgment such an interpretation and the 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 S. 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. xx xx xx xx
Although the words occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. 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 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 not be final in the sense noticed in Kuppuswami's case (supra) but, yet 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 Art. 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of S. 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-section (2) of Section 397. In our opinion it must be taken to be an order of the type falling in the middle course.
15. The Supreme Court again has had the occasion to consider the scope and ambit of sub-section (2) of Section 397 in the context of the term 'interlocutory order' appearing in Section 11(1) of the Special Courts Act 1979 providing appeal to the Supreme Court as of right from any judgment, sentence or order, not being 'interlocutory order' of a Special Court both on facts and on law in V. C. Shukla v. State through C.B.I. : 1980CriLJ690 . The material facts were as under :
Justice Joshi, Special Judge appointed under the Special Courts Act, 1979 (No. 22/79) passed an order directing a charge to be framed against the appellant under section 120B of the Indian Penal Code read with Section 5(1)(d) and Section 5(2) of the Prevention of Corruption Act 1947 and also under section 5(2) read with Section 5(1)(d) of the said Act. An appeal was preferred by the appellant against the said order under Section 11(1). A contention was urged before the Supreme Court by the Advocate appearing for the appellant that the Special Courts Act being in pari materia, the Criminal Procedure Code, the expressions used and the meaning of the words employed in the Act must have the same meaning and signification as used in the various provisions of the Criminal Procedure Code of 1973 and on that basis it was contended that on a proper construction of S. 11 of the Act, the word 'interlocutory order' has been used exactly in the same sense as the same word has been used in S. 397(2) of the Code.
16. In considering the question, the Supreme Court, referring to its earlier decision in Amar Nath's case (1977 Cri LJ 1891) and approving the correctness of the decision that the order directing issue of summons in the said case was not purely an interlocutory order but an order of moment revisable under section 397(1) on the facts and circumstances of the case leading up to passing of the order directing issue of summons observed thus :
'It was in the background of these circumstances, that this Court held that such an order being a matter of moment affecting the parties, could not be said to be purely an interlocutory order. We have no doubt that the decision of this Court referred to above was absolutely correct.
17. Again dealing with the ruling in Madhu Limaye's case (1978 Cri LJ 165), the Supreme Court observed :
'Reading the observations made by this Court in the aforesaid case as a whole we are unable to agree with the argument of Mr. Mridul that this Court in no way disapproved the tests of a final order or interlocutory order accepted by the Federal Court in the case of S. Kuppuswami Rao v. The King, 1947 FCR 180 : (1950-49 Cri LJ 625). This Court took care to explain that in a situation with which the judges were dealing in that particular case, it would not be proper to treat the order framing charges as an interlocutory order pure and simple. Even though the order may be intermediate it could not be said to be final so as to bar the revisional jurisdiction of the High Court under Section 397(3) of the Code. We find ourselves in complete agreement with the exposition of the law by the learned Judges who decided the said case. We will deal with a broader and a wider aspect of the matter in a later part of our judgment when we deal with the scope and ambit of the Act. We might reiterate here even at the risk of repetition that the term 'interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial because the bar contained in Section 397(3) of the Code would apply to a variety of cases coming up before the Courts not only being offences under the Penal Code but under numerous Acts. If, therefore, the right of revision was to be barred, the provision containing the bar must be confined within the four corners of the spirit and the letter of the law. In other words, the revisional power of the High Court or the Sessions Judge could he attracted if the order was not purely interlocutory but intermediate or quasi final.'
18. Keeping in view the above principles of law enunciated by the Supreme Court, let me now proceed to consider the order of the S.D.M. to find out whether it is a pure and simple 'interlocutory order' as contended by Shri Abdullah, the learned Advocate for the petitioner or it is an order falling under the category of intermediate or quasi-final.
19. It is seen from the contents of the order that the order came to be passed in a proceeding initiated under section 145 of the Code relating to the land bearing Sy. No. 4/A in which standing sugarcane crop was there at the relevant time. It is also seen that a preliminary order was made on 16-1-1982 and both the parties were directed to put in written statements of their respective claims as respects the fact of actual possession of the land in question on or before 22-1-1982 and the matter came up for preliminary hearing on 6-2-1982 on which date the impugned order was made. On that day, the Counsel for respondents-1 and 2 produced some documents and also affidavit duly sworn, whereas the petitioner filed an application in person praying for time on the ground that her Counsel had gone to Hyderabad for treatment. At this stage, the learned S.D.M. made the following order :
'For the reasons stated in the preamble and in the exercise of the powers conferred on me under section 146 of the Code of Criminal Procedure-I Sri B. H. Manjunath, K.A.S. Assistant Commissioner and Sub-Divisional Magistrate, Bidar hereby attach the land Sy. No. 4/A measuring 8 acres 36 guntas of Hankuni village, Humnabad along with the standing crop therein. The Tahsildar Humnabad is appointed as official receiver in respect of the disputed land until further orders. The official receiver shall take possession of the land along with the standing crop forthwith.
It is further ordered that the standing crop shall be disposed of by a public auction with due publicity subject to the following terms and conditions :-
1. The standing crop should be disposed of through a public auction.
2. The successful bidder shall credit full amount of public auction to the official receiver and obtain a written order from the official receiver and thereafter harvest the standing crop.
3. If no bidder comes forward the official receiver shall harvest and deliver the sugarcane to the B.S.S.K. Co-operative Factory, Hallikhed-B, in Humnabad Taluk. The expenditure incurred shall be deducted from the proceeds thus realised.
4. The successful bidder shall not alter any boundary mark and natural course of water.
5. The successful bidder should not correct or demolish any structure if any.
6. The successful bidder shall not get any right or title etc., whatsoever in respect of the disputed land.'
20. In paras 1 and 2 of the preamble, the learned S.D.M. has merely summarised the averments made in the F.I.R. and the proceedings of the day (6-2-1982) and in para 3 stated the reasons for making the above order in these terms :
'There is a standing crop viz., sugarcane. It is subject to natural and speedy decay. Therefore, it is considered just and proper to attach the property and to appoint an Official Receiver to look after the disputed land till the final disposal of the case. Hence the following order.'
21. It is true, as contended by Sri M. B. Naragund that the operative portion of the order shows that the S.D.M. had attached the land S. No. 4/A and appointed the Tahsildar, Humnabad as official receiver in respect of the disputed land until further orders and in particular to carry out the directions given under the terms and conditions incorporated in the order in exercise of the powers conferred upon him under Section 146 of the Code. However, the operative portion of the order is required to be read in the light of the preamble portion of the order immediately preceding the operative portion of the order contained in para 3 excerpted above to see the circumstances and the reasons for which the order in question came to be passed, the reasons being the standing sugarcane crop which was subject to natural and speedy decay and therefore he considered just and proper to attach the property and to appoint an official receiver to look after the disputed land till the final disposal of the case. What the learned S.D.M. meant by saying 'to look after the property till the disposal of the case' was to take care of the standing sugarcane crop which was subject to natural and speedy decay, which fact as could be gathered from the order drew the immediate attention of the learned S.D.M. to make the order in question even before the parties filed their respective claims as to the fact of their actual possession of the disputed land obviously in exercise of his powers under sub-section (8) of Section 145, although he has wrongly mentioned Section 146 in the operative portion of the order. There was absolutely no other compelling reason for the learned S.D.M. to take action under any of the conditions stipulated in sub-section (1) of Section 146, as he did not consider the existence of any emergency to attach the subject matter in dispute except that he was of the view that there was standing sugarcane crop on the disputed land and that it was subject to natural and speedy decay and therefore he considered just and proper to attach the property and to appoint an official receiver to take care of the standing sugarcane crop will the final disposal of the case. It is provided under sub-section (8) of Section 145 that if the Magistrate is of the opinion that any crop or any other produce of the property, the subject of dispute in a proceeding under section 145 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. On the other hand, an order under section 146(1) could be made, 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. In this case, admittedly a preliminary order was made as required under section 145(1) and the parties were called upon to appear before him and file their written statement of their respective claims as respects the fact of actual possession of the subject of dispute and there was no other material before him when he made the order in question to say that there was every reason for the S.D.M. to exercise his emergency power as contemplated under sub-section (1) of Section 146 of the Code. On the other hand, a simple reading of the order in question would show that what impelled him to make the order on 6-2-1982 was that he could not proceed with the preliminary enquiry since the petitioner sought for time and therefore the learned S.D.M. thought that he should make the order in question in the meanwhile, to preserve the standing sugarcane crop which he considered to be subject to natural and speedy decay. Instead of looking into the form of the order, if we look into the spirit and purpose of it, then we would be left with no doubt that the order in question was passed by the S.D.M. in exercise of his powers conferred under subsection (8) of Section 145 and not under section 146 as mentioned in the operative portion of the order. He has further made it clear that the order he proposed to make was to continue till the final disposal of the case.
22. Taking into consideration all the circumstances, I am inclined to hold that the order in question squarely falls under the category of pure and simple 'interlocutory order' made in the interest of both the parties with a view to preserve the standing crop of the disputed land till an appropriate order was made at the conclusion of the inquiry, and the benefit of which would be available to the party who ultimately succeeds before him. Once it is held that the order passed by the S.D.M. was a pure and simple 'interlocutory order' then it necessarily follows that a revision before the learned Sessions Judge was barred under sub-section (2) of Section 397. Such being the case, the order under challenge in this revision petition which was passed by the learned Sessions Judge Bidar was an order passed without jurisdiction. Consequently it follows that his order is liable to be set aside.
23. In view of my finding under point No. 1, I feel it unnecessary to record any opinion regarding point No. 2.
24. In the result, for the reasons stated above, the revision is allowed and the order passed by the learned Sessions Judge, Bidar, is set aside. In the circumstances of the case, I direct the Sub-Divisional Magistrate to proceed with the inquiry and dispose of the matter expeditiously.
25. Revision allowed.