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Sayed Mohmad ZayauddIn Shah Sahibmiyan Alti Vs. Noorbibi @ Vaziranbibi Hasanbhai and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR120
AppellantSayed Mohmad ZayauddIn Shah Sahibmiyan Alti
RespondentNoorbibi @ Vaziranbibi Hasanbhai and anr.
Cases ReferredMadhu Limaye v. Amar Nath and Baldevdas (supra
Excerpt:
.....1 against such an order was, therefore, clearly maintainable. baqui is that in this case on the basis of the averments made in the application and the affidavits filed in support thereof, the learned magistrate was satisfied regarding the necessity of passing the order of attachment;.....of attachment passed under section 146(1) is a discretionary order and it has to be passed by the learned magistrate after arriving at a satisfaction regarding the necessity of passing the same. the question whether the material on the basis of which such an order came to be passed is sufficient or not is not the question which can be gone into by the superior court either in appeal or in revision. what is submitted by mr. baqui is that in this case on the basis of the averments made in the application and the affidavits filed in support thereof, the learned magistrate was satisfied regarding the necessity of passing the order of attachment; and, therefore, the learned additional city sessions judge ought not to have reversed that order on merits. mr. baqui would have been right in his.....
Judgment:

G.T. Nanavati, J.

1. This revision application arises out of an interim order passed by the Executive Magistrate, Ahmedabad under Section 146(1) of the Code of Criminal Procedure, 1973 (hereafter referred to as 'the Code') and reversed by the learned Additional City Sessions Judge, Ahmedabad in exercise of his revisional power. The question which is raised for my consideration is whether the interim order of attachment passed by the Executive Magistrate can be said to be an interlocutory order against which no revision application would lie under Section 397(2) of the Code or whether it is an order, which, though interim in nature, can be revised in exercise of revisional powers under that section. Before I proceed to examine this question, a few facts necessary for the purpose of appreciating the rival contentions raised on behalf of both the sides, may be stated. The petitioner is the owner of residential premises bearing City Survey No. 3585 and Municipal Census No. 1976(2) situated in Shahpur Ward No. 2 in the city of Ahmedabad. The said premises were formerly let out to one Sarfubhai Miyabhai who died on 27-11-1979. According to the petitioner, at the time of his death, Saifubhai handed over possession of the said premises to the petitioner. The petitioner's case is that after the death of Sarfubhai, opponent No. 1 who is the sister of Sarfubhai had requested him to allow her to stay in the said premises for same days so as to enable her to perform after-death ceremonies of Sarfubhai. The petitioner had therefore, allowed opponent No. 1 to occupy the said premises for some days only for the said purposes. After few days, the petitioner requested opponent No. 1 to hand over vacant possession of the said premises, but she refused to do so; and threatened him that in no circumstances she will hand over possession of the premises to the petitioner. According to the petitioner, this dispute between him and opponent No. 1 had created such a situation that it would have caused immediate breach of peace. He therefore, filed an application on 4-1-1980 against opponent No. 1 and one Ahmedhusain Hasambhai in the Court of the Executive Magistrate, Metropolitan Area, Ahmedabad for initiating proceedings under Section 145 of the Code. The Executive Magistrate, after considering the averments made in the application and the affidavits filed in support of the said application passed an order under Section 145(1) of the Code. Soon thereafter he also passed an order under Section 146(1) for attaching the said property on the ground that the case was one of emergency. By the said order of attachment, the Executive Magistrate directed the police Inspector incharge of Karanj Police station to attach the said property and to hold the same till the competent Court determines the question as to who is entitled to possession thereof. Pursuant to the said order of attachment, P. 1. Karanj police station attached the said property and applied his lock and seals after removing opponent No. 1 from the said premises. Opponent No. 1 challenged the said order by filing Criminal Revision Application No. 20 of IS 80 in the Court of the learned City Sessions Judge, Ahmedabad. Before the learned Additional City Sessions Judge, an objection was raised on behalf of the petitioner as regards maintainability of the revision application against the order passed by the Executive Magistrate, in view of the bar contained under Section 397 of the Code. The learned Judge, however, over-ruled that objection, proceeded to decide the revision application on merits; and ultimately passed an order dated 4-2-1980 holding that the order passed by Executive Magistrate was not justified on facts and in the circumstances of the case. The learned Judge, therefore, allowed the revision application, set aside the order passed by the Executive Magistrate and directed that the possession of the premises in question be handed over to opponent No. 1. This order passed by the learned Additional City Sessions Judge in revision application has been challenged by the petitioner in this Revision Application.

2. The first contention raised by Mr. Baqui, the learned advocate appearing for the petitioner is that the order passed by the Executive Magistrate under Section 146(1) is an interlocutory order; and, therefore, the revision application filed by opponent No. 1 against that order in the Court of the learned City Sessions Judge was not maintainable in view of the clear provisions of Section 398(2) of the Code. He has submitted that the order passed by the Executive Magistrate is an interim order and would remain operative till the Executive Magistrate completed the enquiry under Section 145 of the Code or till the competent Court decides the question as to who is entitled to the possession of the subject of dispute between the parties. Since the said order does not decide any question finally, it must be held to be an interlocutory order. In support of his contention, he has relied upon a decision of Allahabad High Court in Premlata v. Ram Lubhaya 1978 Criminal Law Journal, 1822. Allahabad High Court after referring to the provisions of Sections 145 and 146 held that an order of emergency attachment made under the first clause of sub-section (1) of Section 146 does not conclude the proceedings initiated, under Section 145. It is a protective measure meant to prevent breaking of heads till such time as the Magistrate gives his decision under Section 145(4) of the Cr.P.C. After referring to the decision of the Supreme Court in Madhu Umaye v. State of Maharashtra : 1978CriLJ165 and applying the test that 'An order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2) Cr.P.C.' held that a decision on the question whether the emergency attachment of the property is dispute is justifiable or not is not a matter which will conclude the proceedings under Section 145 Cr. P. Code; and therefore, such an order is an interlocutory order. It is important to note that the Allahabad High Court referred to and applied only one of the tests laid down by the Supreme Court in Madhu Limoye's case (supra) while deciding the question as to whether the order impugned in that case was an interlocutory order or not. The Supreme Court in Midhu Limaye's case has clearly held that for the purpose of Section 397(2) of the Code, all the orders which are not final are cot necessarily interlocutory orders. There may be an order passed during the course of a proceeding which may not be final, and, yet it may not be an interlocutory order pure or simple. Some kinds of order may also fall in between the two. The Supreme Court has further observed that same kind of test as has been adopted for the purpose of Section 115 of the Code of Civil Procedure should beapplied for finding out the real meaning of the expression 'interlocutory order' occurring in Section 397(2) of the Code. The Supreme Court has then referred to with approval its earlier decision in Baldevdas v. Filmistan Distributors (India) Pvt. Ltd. : [1970]1SCR435 , in which the test for the purpose of Section 115 of the Code of Civil Procedure was laid down as under:

A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy.

In that case, the Supreme Court has also referred to its earlier decision in Amarnath v. State of Haryana : 1977CriLJ1891 wherein it has been observed as under:

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 of 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.... 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 inter locutory order so as to be out side the purview of the revisional jurisdiction of the High Court.

In the aforesaid decision, the Supreme Court has also referred to its earlier decision in Mohanlal Maganlal Thacker v. State of Gujarat : 1968CriLJ876 wherein it has been held that 'the finality of an order could not be judged by correlating that order with the controversy in the complaint. The fact that the controversy still remained alive was irrelevant.' If the decisions of the Supreme Court in the cases of Amarnath and Madhu Limaye are read carefully, it becomes clear that the test applied by the Allahabad High Court while determining the question whether the order in question was an interlocutory order or not, is not the only test. If the order affects rights or liabilities of a party or is an order which cannot be challenged by the person behind whose back it has been passed till the enquiry is over, then it should not be considered as an interlocutory order. If we examine the nature and effect of an order passed under Section 146(1) of the Code, the following points emerge:

(1) In a case which is considered to be one of emergency, an order under Section 146(1) can be passed by the Magistrate at any time after making the order under Section 145(1) of the Code.

(2) Such an order can be passed ex parte i.e. without hearing a party who may be affected thereby.

(3) The effect of the order would be that the property will be attached by the Magistrate and it would remain in his possession, of course as custodia legis till he either decides as to who was in possession of the property on the date of the passing of the order under Section 145(1) or till the competent Court determines the rights of the parties to the proceedings with regard to the question as to who is entitled to possession thereof.

(4) The order of attachment can be withdrawn by the Magistrate at any time if he is satisfied that there is no likelihood of breach of peace with regard to the subject of dispute.

It is significant to note that under Section 145 the only enquiry which the Magistrate is required to make after making an order under Section 145(1) is to find out whether any of the parties to the proceedings was on the date of the order in possession of the subject of dispute; and if he finds that one of the parties to the proceedings was in possession of the subject of dispute, he required to made a declaration to that effect; and then the party aggrieved will have to seek his remedy in a competent Court and not to disturb in the meanwhile possession of the party, who is declared to be in possession by the Magistrate. If the Magistrate on the other hand comes to the conclusion at the end of the enquiry that none of the parties to the proceedings was in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of the parties 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. It would, thus appear that the question whether the case is one of emergency or not is required to be decided at the initial stage particularly when a party to the proceeding applies to the Magistrate for passing an order of attachment on that ground; and that decision would hold the field till the enquiry is over. Such an order can be passed ex-parte. The effect of the order may be to summarily evict a person in possession of the property at the time of passing the order of attachment.

3. It, therefore, cannot be said that it is an order which does not affect the rights or liabilities of the parties; nor can it be said that it does not decide any question finally and that it is not a matter of movement. In that view of the matter, with respect, I am unable to agree with the observations of the Allahabad High Court in Premlata's case (supra), and following the ratio laid down by the Supreme Court in the cases of Madhu Limaye v. Amar Nath and Baldevdas (supra), I hold that an order of attachment passed by the Executive Magistrate under Section 146(1) of the Code is not an interlocutory order for the purpose of Section 397(2). The revision application filed by opponent No. 1 against such an order was, therefore, clearly maintainable. The first contention raised by Mr. Baqui is therefore, rejected.

4. The second contention raised by him is that the order of attachment passed under Section 146(1) is a discretionary order and it has to be passed by the learned Magistrate after arriving at a satisfaction regarding the necessity of passing the same. The question whether the material on the basis of which such an order came to be passed is sufficient or not is not the question which can be gone into by the superior Court either in appeal or in revision. What is submitted by Mr. Baqui is that in this case on the basis of the averments made in the application and the affidavits filed in support thereof, the learned Magistrate was satisfied regarding the necessity of passing the order of attachment; and, therefore, the learned Additional City Sessions Judge ought not to have reversed that order on merits. Mr. Baqui would have been right in his submission if the order had been passed after hearing the other side and or after exercising the discretion properly and judicially. If, for example, in a given case it is found that the learned Magistrate had not exercised the discretion in a judicial manner but had exercised it arbitrarily, such an order, can certainly be revised or interfered with in an appeal or a revision application as the case may be. If the Magistrate passes such an order in a mechanical way without appreciating the nature and consequences of the said order, it can not be said that the learned Magistrate had exercised the discretion properly and judicially. If the relevant factors which should be present to the mind of the Magistrate at the time of passing such an order are overlooked or are not considered while passing the order, such an order can be interfered with. In the instant case, the impugned order was passed ex parte. It was passed inspite of the fact that in the application itself and the affidavits produced in support thereof, it was disclosed that on the date on which the Court was called upon to pass an order under Section 145(1), opponent No. I was in possession of the property which is the subject of dispute. Except a bare allegation that opponent No. 1 had engaged Gundas and that there was immediate possibility of breach of peace, there was no other material to show that this was a case in which emergent action was called for, Even as regards these allegations, it ought to have been appreciated that the possibility of breach of peace would have arisen only if the petitioner had tried to take possession forcibly from opponent No. 1 and not otherwise. If we look at the order passed by the Executive Magistrate, it is apparent that the Magistrate has over looked all these relevant factors and has passed the order without applying his mind. The learned Additional City Sessions Judge was therefore, fully justified in setting aside the order passed by the Executive Magistrate and in ordering restoration of possession of the property to opponent No. 1.

5. In the result, the order passed by the learned Additional City Sessions Judge, Ahmadabad is confirmed. The revision application is dismissed; and the Rule is discharged. Interim order passed by this Court directing status quo to be maintained is vacated and the opponent No. 1 is ordered to be put in possession of the property forthwith.


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