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Abdul Jabbar Khan and ors. Vs. Kailash Chandra and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1982CriLJ128; 1981()WLN374
AppellantAbdul Jabbar Khan and ors.
RespondentKailash Chandra and anr.
Cases Referred and Mohanlal Mangilal Thakkar v. State of Gujarat
Excerpt:
.....146--report made to police during pendency of proceeding under section 145--magistrate misread report--held, magistrate ignored material fact and addl. sessions judge was justified in accepting revision.;the magistrate committed a serious error of either misreading or grossly ignoring relevant & important fact when he observed that none of the parties has lodged any report in the police in respect of any apprehension of violence or offence about the disputed property, during the pendency of those proceedings. admittedly, the proceedings under section 145(1) were filed on 23rd may, 1980 and the police report was filed on 27th august, 1980. therefore, it was during the pendency of the proceedings under section 145(1). i am, therefore, convinced that the magistrate concerned misread..........with the above bombay view and hold that an order under section 146(1) 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. consequently, the objection of mr. tyagi against the entertainment of the revision application by the additional sessions judge, cannot be accepted13. coming to the merits of the matter, the police report which was submitted before the magistrate, during the pendency of the proceedings under section 145(1), on 19th sept. 1980, was read over before me. in this report, not only there is a mention that even now there is a great tension of breach of peace and if attachment is not done, there would be breach of peace,.....
Judgment:
ORDER

Guman Mal Lodha, J.

1. This is an application Under Section 397 read with Section 401 of the Cr. P. C. against the order of the Additional Sessions Judge No. 2, Jaipur, dated 11th June. 1981, passed in Criminal Revision No. 73/1980 and 2/1981, Kailash Chandra v. Abdul Jabbar against the order of Additional District Magistrate, Jaipur City in Criminal Case No. 14 (19) 80. State v. Kailash Chandra. Party No. l and Abdul Jabbar anil others. Party No. 2, Under Sections 145 and 146 of the Cr. P. C.

2. The dispute relates to an immovable property known as Mehtab Bhawan Siwad House of Maanii Sahib Raiku-mari Rathore, situated at old Amber Road, Jaipur. Respondent No. 1, Kailash Chandra took some portions on lease for running an oil mill. Maanii Sahib entered into an agreement to sell her, property on 12th Apr, 1979, in which the disputed hall as well as the oil mill of respondent No. l was located.

3. Respondent No. l is the tenant of Maanji Sahib, and the petitioners are the purchasers of that property.

4. In substance, the dispute relates to the possession of a hall about which the petitioner-purchasers allege that the peaceful possession was given to them, but the tenant, respondent No. 1. Kailash Chandra alleges that forcible possession was being taken resulting in breach of peace.

5. The Magistrate drew a preliminary order Under Section 145 of the Cr. P. C. in respect of this property and asked both the parties to produce evidence. Respondent No. 1. Kailash Chandra filed an application for appointment of a receiver or attachment of the said property Under Section 146 of the Cr. P. C. But the Magistrate refused to pass any order for appointment of receiver or attachment on the ground that after the filing of the complaint Under Section 145, there is no evidence to show that there is any imminent danger of breach of 1982 Cri. L.J./9 I Oeace. The Magistrate held that the police report shows that there is tension, bitf it has not come on record that after the drawing of the preliminary order any of the parties has filed any police report regarding any offence or dispute, about this property. On this short point, the Magistrate rejected the application Under Section 146(1) on 30th Jan. 1981.

6. In revision, the revisional court was of the view that this finding of the Magistrate, was erroneous. The Addi-, tional Sessions Judge was of the view that on 27th July. 1980, a criminal case was registered Under Sections 480, 448 and 380 of the Indian Penal Code, by respondent No. l, Kailash Chandra, against the petitioners. This dispute arose on 27th July, 1980 in the morning. On 30th Aug. 1980, Kailash Chandra again moved an application requesting the Magistrate to attach the property Under Section 146(1) and the Magistrate directed the police to make an enquiry and file a report. On 19th Sept. 1980, a police report was received, according to which, there was a danger of breach of oeace on the spot.

7. The Additional Sessions Judge, was. therefore, of the view that there was emergency and imminent danger of breach of peace warranting attachment Under Section 146(1) of the Cr. P. C.

8. Mr. Tyagi, the learned Counsel for the petitioners, has submitted that firstly, the present impugned order being an interlocutory order, no revision can be entertained by the Additional Sessions Judge, He admitted that there is no decided case either of the Supreme Court or of this Court directly on this point, whether an order of appointment of a receiver or attachment Under Section 146(1) of the Code of Criminal Procedure, is an interlocutory order. He. however, relied upon a decision of the Supreme Court in Amar Nath v. State of Haryana : 1977CriLJ1891 and submitted that on the principles laid down in that case, an order Under Section 146(1) fails to determine the rights of the parties finally, and, therefore1, it is .on interlocutory order. Mr. Tyagi further submitted that the satisfaction Under Sections 145(1) and 146(1) should be of the Magistrate, and the Additional Sessions Judge could not be permitted to substitute his own opinion. In this connection, Mr. Tyagi relied upon a decision of this Court in Gurmohander-Singh Sandhu v. Gurpal Singh, 1981 Cri LR 134 (Raj), and a decision of the Bombay High Court in Hasmukh J. Jhaveri v. Sheila Dadlani. 1981 Cri LJ 958.

9. The learned Counsel for respondent No. 1 has opposed the revision petition and controverted the facts and allegations and so also the legal propositions enunciated by Mr. Tyagi.

10. Mr. Tyagi in his rejoinder, retained the submissions extracted above and further submitted that the judgment of the Munsif Magistrate dated 16th May, 1980, further demolishes the case of respondent No. 1, Kailash Chandra, about his possession over the disputed property on the disputed date.

11. I have given my thoughtful consideration to the rival contentions made by both the counsel for the parties, and I have carefully gone through the record of the case. The order Under Section 146(1). rejecting the prayer for attachment or appointment of receiver in respect of the disputed property for which a preliminary order has been drawn Under Section 145 (1), becomes final so far as those proceedings are concerned, because, once the prayer for attachment or appointment of receiver is rejected, the property remains in possession of the opposite party. In the generic sense, every and each order which is passed during the pendency of the case, can be termed as interlocutory order, but in specific juristic connotation, an order which determines the rights of the parties finally, is not an interlocutory order against which revision is barred. Kotwal, J. in Hasmukh J. Jhaveri v. Sheila Dadlani 1981 Cri LJ 95ft (Bom) (supra) considered the question whether an order Under Section 146(1) of the Cr. P. C. is an interlocutory order, while doing so, his Lordship in the above decision of the Bombay High Court first extracted the propositions which emerge from the various judgments of the Supreme Court in Amar Nath v. State of Haryana 1977 Cri LJ 1891 (supra); Madhu Limaye v. State of Maharashtra : 1978CriLJ165 ; V.C. Shukla v. State : 1980CriLJ690 ; and Mohanlal Mangilal Thakkar v. State of Gujarat : 1968CriLJ876 . Twelve deductions were drawn from the above judgment? which are as under :

(1) That the term 'interlocutory order1' 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 highlight the concept that the nature of the order must be pure and simple temporary or interim in character and ostensibly deceptive appearance of a temporary character should not be confused with the real and outright temporary nature.

(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) The potential capacity to terminate proceeding or t0 give it a label of finality is also not the only and conclusive criterion, though it by itself is n relevant feature.

(6) 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) 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) 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.

Applying the above tests and guidelines, his Lordship observed that the order Under Section 146(1) in respect of the attachment, would never be embraced by the term 'interlocutory order'. Tt is neither interim nor temporary but pure and simple. It affects the rights of the parties. The Court observed as under :

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 ;he respondent therein.

12. I am in respectful agreement with the above Bombay view and hold that an order Under Section 146(1) 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. Consequently, the objection of Mr. Tyagi against the entertainment of the revision application by the Additional Sessions Judge, cannot be accepted

13. Coming to the merits of the matter, the police report which was submitted before the Magistrate, during the pendency of the proceedings Under Section 145(1), on 19th Sept. 1980, was read over before me. In this report, not only there is a mention that even now there is a great tension of breach of peace and if attachment is not done, there would be breach of peace, but, further it has been mentioned that on 27th Aug. 1980, a police report has been recorded in Manak Chowk Thana in which it has been mentioned that the opposite party was throwing stones and giving abuses and was preparing for committing breach of peace. A copy of this report No. 2354 dated 27th Aug. 1980, was an- nexed by the Sub-Inspector to this report. It would thus be seen that on the face of this report of the police, the Magistrate committed a serious error of either misreading or grossly ignoring relevant and important fact when he observed that none of the parties has lodged any report in the police in respect of any apprehension of violence or offence about the disputed property, during the pendency of those proceedings. Admittedly, the proceedings Under Section 145(1) were fited on 23rd May, 1980 and the police report was filed on 37th Aug. 1980. Therefore, it was during the pendency of the proceedings Under Section 145(1). I am, therefore, convinced that the Magistrate concerned misread the report of the police, received on 19th Aug. 1980 and rejected the prayer for attachment on the basis of omission to consider the relevant material facts as disclosed in this report. In such circumstances, the Additional Sessions Judge was justified in accepting the revision application and directing the attachment and appointment of the receiver.

14. Mr. Tyagi's submission that tha judgment of the Munsif Magistrate dated 16th May, 1981. should be considered by this Court now, and on that basis, the order of the Additional Sessions Judge, should be set aside, cannot be accepted, because they could have filed it before the Additional Sessions Judge, who passed the order on 11th June, 1981. Since the petitioners have not filed tnis judgment before the Additional Sessions judge, it is not possible to entertain the prayer for consideration of this judgment of the Munsif Magistrate and the implications arising from it in this revision before this Court.

15. It is true that primarily, it is for' the Magistrate and it is the Magistrate's satisfaction that matters Under Sections 145(1) and 146(1) which are of original nature, but that would not absolve the Sessions Court or this Court by its legal duty to correct such legal errors which are within the revisional jurisdiction if they are detected. this Court or the Sessions Court cannot divorce its jurisdiction merely because the Magistrate concerned is primarily to record its satisfaction. The satisfaction or non-satisfaction can be based on relevant and material evidence and in a case, where it is found that any important legal evidence has either been ignored or misread or it is found that extraneous matters or irrelevant matters have been considered then the order of the Magistrate, is vitiated. I am convinced that the present one is the case of that category. That being so. I haye no hesitation in rejecting this application.

16. The revision application is, therefore, rejected as indicated above,Application dismissed.


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