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Mrs. Radha Venkata Rao Vs. Mrs. Prema Malhotra and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1985CriLJ1894
AppellantMrs. Radha Venkata Rao
RespondentMrs. Prema Malhotra and anr.
Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter...........397(2), cr. p.c. are predominantly in the realm of procedure without touching or affecting the rights of parties. the crucial consideration is, whether the order requires a seal of finality having an impact upon the rights and privileges of the parties. the order though being an interim or short-lived is passed to tide over a temporary impasse pending final adjudication cannot be categorised or labelled as interlocutory order. the magistrate has to apply his mind to the facts and circumstances and the imminent breach of peace warranting culminates in interdiction of the parties from displaying violent overtures in attempting to get at possession. the order though of a temporary phase during the pendency of the final orders under section 145 cr. p.c. puts a quietus or the rival.....
Judgment:
ORDER

Rama Rao, J.

1. This criminal revision case arises out of proceedings under Section 145, Cr. P.C. The petitioner is a tenant and running a school under the name 'St. Sai's School and Baby Care Centre' (hereinafter referred to as first party). The out-house, first floor and a part of the ground floor are in the occupation of the school and the remaining portion of the ground floor is in the occupation of the landlord (hereinafter referred to as the second party). The second party stated that on 7-9-1984 the first party voluntarily vacated the premises and handed over the vacant possession. But this is denied by the first party stating that on the intervening night of 5/6-10-1984 the second party forcibly took possession of the premises. Both the parties filed civil suits. The first party filed criminal complaint for the offences punishable under Sections 427 and 430 IPC against the second party. The first party also filed a suit and obtained an injunction against the second party from surrendering the vacant possession of the first floor and the out-house to the prospective purchaser during the pendency of the suit being O.S. No. 1413/84. Thereafter, the first party initiated proceedings under Section 145 Cr. P.C. and the Special Executive Magistrate passed a preliminary order under Section 145(1), Cr. P.C. and subsequently by an order dt. 13-12-1984 directed the attachment of the subject-matter of dispute and appointed the Tahsildar as a Receiver to keep the property in his custody under Section 146(1) Cr. P.C. while passing the order, it was observed that both the parties are trying to take advantage of the orders passed by the Civil Courts in their favour and in view of the tension and imminent danger to public peace and tranquillity, the order under Section 146(1) Cr. P.C. is necessitated. As against this order, the second party preferred a criminal revision petition before the II Addl. Metropolitan Sessions Judge, Hyderabad. The learned Metropolitan Sessions Judge held that the revision petition is maintainable as the impugned order under Section 146(1) Cr. P.C. affects the rights of the parties and, therefore, cannot be treated as an interlocutory order. It is further held that in view of the fact that both the parties approached the civil court and obtained injunctions, the Special Executive Magistrate should not have attached the property and appointed the Receiver and further there is no conflict between the interlocutory orders obtained by the parties since the first party obtained an injunction for maintaining status quo and the injunction obtained by the first party is confined to interdict the second party from inducting the purchaser into the disputed premises pending disposal of the suit.

2. The learned Counsel for the petitioner raised twofold contention viz. that the criminal revision petition as against the order of attachment is not maintainable and as such as the revision petition should have been dismissed in limine and that in any event the reversal of the order of attachment passed by the Special Executive Magistrate is not justified on merits.

3. To appreciate the rival contentions, it is necessary to refer to Section 397 Cr. P.C. which confers power on the High Court and the Sessions Judge to revise the order of any inferior criminal Court. Sub-section (2) of Section 397 which sets out an embargo on the power of exercise of revision jurisdiction is as follows:

397(2) : The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

4. The essential exercise is whether the order directing the attachment under Section 146(1) Cr. P.C. is amenable to revisional jurisdiction under Section 397 Cr. P.C. and whether such an order is an interlocutory order contemplated, under Section 397(2) Cr. P.C. Subsequent to the order under Section 146(1) Cr. P.C. the Magistrate is empowered under Section 146 Cr. P.C. to attach the property in dispute pending the determination of the rights of the parties with regard to possession by the competent Court. This order is contemplated to avert the threatened breach of peace and avoid scramble for possession and in a situation where the Magistrate cannot satisfactorily determine as to who is in possession of the property.

5. In support of the proposition that the revision does not lie against the attachment order in view of the bar under Section 397(2) Cr. P.C. the learned Counsel for the petitioner relied upon the decision of the Supreme Court in Amarnath v. State of Haryana : 1977CriLJ1891 . Pursuant to the remand order by the Sessions Judge, the Judicial Magistrate took the complaint on file and issued summons to the accused straightway. Thereupon, the accused moved the High Court under Sections 482 and 397 Cr. P.C, for quashing the order of the Judicial Magistrate mainly on the ground that the Magistrate issued the summons mechanically without applying his judicial mind and the High Court dismissed the petition in limine on the ground that the order summoning the appellants is an interlocutory order and the revision petition is not maintainable as provided under Section 397(2) Cr. P.C. while considering the ambit of the 'interlocutory order' visualised in Section 397(2) Cr. P.C. the Supreme Court held as follows at page 2189:

It seems to us that the term 'interlocutory order' in Section 397(2) of 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 rights 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 Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the trial cannot be said to be interlocutory orders so as to be outside the purview of the revisional jurisdiction of the High Court.

6. While considering the issue whether summoning the accused is merely an interlocutory order the Supreme Court held that the Magistrate on receipt of the order of the Sessions Judge summoned the appellants straightway and the proceedings for trial commenced with the passing of the impugned order summoning the accused straightway and as a consequence of this order, a valuable right is denied to the appellants and as such it is not an interlocutory order. It is further held that they should not have faced the trial at all and compelling them to face the trial without proper application of mind cannot be considered as an interlocutory matter, but it is a serious question as to the rights of the parties to be put on trial. In Shishu v. State of Haryana 1982 Cri LJ 124 (Punj & Har.) the proceedings under Section 145 Cr. P.C. were initiated and in the Police report it was mentioned that there were serious disputes regarding the possession and there was likelihood of breach of peace and the Magistrate after issuing notice to the parties passed an order of attachment of the disputed land until a competent court determined the rights of the parties thereto, as there is a great tension and likely to create breach of peace. In the revision petition filed by the aggrieved party, an objection was taken as to the maintainability of the revision petition in view of the bar under Section 397(2), Cr. P.C. In the context of considering the preliminary objection as to maintainability of the revision petition, the Punjab and Haryana High Court held as follows at page 126:

An order of attachment under Section 145(4) Cr. P.C. was only a limited purpose viz. to prevent the imminent danger of the breach of the peace, it is, by its very nature, temporary measure and comes to an end with the conclusion of the proceedings and may be brought to an end even earlier. Such an order is only a step in the proceedings taken to further the ends of justice and in that view of the matter, it is purely an interlocutory order, which is not revisable in view of the bar contained in Section 435(e)(4), Cr. P.C.

7. In Smt. Premalata v. Ramlubhaya 1978 Cri LJ 1822 (All), the Magistrate being of the opinion that there was an apprehension of the breach of peace and also emergency passed an order attaching the property in dispute. In the revision petition filed as against the said order, a preliminary objection was taken that the impugned order being an interlocutory order is not amenable for revision under Section 397(2) Cr. P.C. In the context of considering this contention, P. N. Bakshi, J. held as follows at para 5:

The first order of attachment would obviously be passed during the continuance of the proceedings under Section 145 Cr. P.C. before the Magistrate. However if he considers during the course of the proceedings that an emergency has arisen, he is entitled to pass an order directing attachment. In that case in spite of the order of attachment the proceedings under Section 145 Cr. P.C. shall continue to be followed. The parties will file their written statements, documents, affidavits and produce evidence as they may desire and thereafter under Sub-section (4) of Section 145 Cr. P.C. the Magistrate will decide which of the party was in possession of the disputed property on the date he passed the preliminary order under Sub-section (1) of Section 145, Cr. P.C. Thus an order of emergency attachment in the first instance cited above will not conclude the proceedings. As a matter of fact, when a decision has been arrived at under Section 145(4) Cr. P.C. by the Magistrate and he gives his verdict holding one party to be in possession of the property in dispute and for bidding interference with his possession by the other party, he will in those circumstances lift the emergency attachment imposed by him. In other words the emergency attachment is just a prospective measure to prevent breaking of heads till such time as the Magistrate gives his final decision under Section 145(4) Cr. P.C. As such an order passed under the first clause of Section 146 Cr. P.C. will be an interlocutory order.

8. Regarding the attachment orders contemplated under Sections 145 and 146 Cr. P.C. P. N. Bakshi, J. held that the order under Section 145(4) is a final order and will continue to be operative so long as parties do not approach the proper forum for appropriate reliefs and such an order concludes Section 145 Cr. P.C. and it should be considered as a final order. Thus Bakshi, J. held that there is a distinction between an initial attachment order passed with a view to avert the breach of peace and subsequent order giving a finale to the proceedings under Section 145 Cr. P.C. by passing an order of final attachment.

9. The learned Counsel for the respondent relied upon the decision of the Bombay High Court in Hasmukh J. Jhaveri v. Sheila Dadlani 1981 Cri LJ 958 (Bom) wherein Kotwal, J. with reference to interlocutory nature, held as follows at para 32:

Section 145 indicates that those are merely steps-in-aid in the matter of procedure for conducting the proceedings. 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 of aspect, and the final adjudication of the main proceeding and thus it would obviously be not an interlocutory order. With equal certainty it cannot be said to be an order of moment.

10. In Abdul Jabbar Khan v. Kailash Chandra 1982 Cri LJ i 28 (Raj) the Magistrate has drawn a preliminary order under Section 145 Cr. P.C. in respect of the property in dispute and during the pendency of the inquiry, an application was filed for appointment of a receiver for attachment of the said property under Section 146(1) Cr. P.C-But the Magistrate refused to pass the order on the ground that there is no evidence to show that there is any imminent danger of breach of peace and on revision the Additional Sessions Judge was of the view that the order of the Magistrate was erroneous. He was also of the view that there was imminent danger of breach of peace warranting attachment under Section 146(1). On revision to the High Court as against this order, it was contended that the revision should not have been entertained by the Sessions judge, as the revision does not lie. In the context of considering this aspect, Guman Mai Lodha, J. held that the order under Section 146(1) Cr. P.C. either accepting the application for attachment or rejecting the same affects the rights of the parties and cannot be treated as an interlocutory order against which a revision application is barred.

11. Section 397(2), Cr. P.C. provides that interlocutory orders are not amenable to revisional jurisdiction. The interlocutory orders visualised under Section 397(2), Cr. P.C. are predominantly in the realm of procedure without touching or affecting the rights of parties. The crucial consideration is, whether the order requires a seal of finality having an impact upon the rights and privileges of the parties. The order though being an interim or short-lived is passed to tide over a temporary impasse pending final adjudication cannot be categorised or labelled as interlocutory order. The Magistrate has to apply his mind to the facts and circumstances and the imminent breach of peace warranting culminates in interdiction of the parties from displaying violent overtures in attempting to get at possession. The order though of a temporary phase during the pendency of the final orders under Section 145 Cr. P.C. puts a quietus or the rival threatening postures regarding possession and thus affects the rights of the parties. The order is final and binding on the parties till the disposal of the main proceeding under Section 145 and the Magistrate has to apply his mind to the urgent need and imminent danger and pass an appropriate order. The distinction highlighted by Bakshi, 1, of the Allahabad High Court between an interim attachment order and final attachment order is not germane in the context of considering the bar under Section 397(2) Cr. P.C. The initial or mini attachment order is equally effective and binding upon the parties and also necessitates objective approach of imminent threat to peace and the duration of the order does not determine the nature and effect. The amplitude of interlocutory order has to be considered from the perspective of finality for even a temporary phase and whether it requires application of mind. I am unable to subscribe to the views propounded by the Allahabad High Court and Punjab and Haryana High Court.

12. The learned Metropolitan Sessions Judge is justified in holding that the attachment order is not appropriate and valid in view of the interim orders of the Civil Court. Revision Petition dismissed.


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