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Malamsingh Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1977CriLJ730; 1976(9)WLN547
AppellantMalamsingh
RespondentState of Rajasthan
Cases ReferredUmrao v. Sheonarain
Excerpt:
criminal procedure code (new) - sections 397 and 482--revisional jurisdiction and inherent jurisdiction are separate and distinct--court exercises revisional jurisdiction under section 397 but it prevents injustice under section 482--in exercise of inherent jurisdiction it cannot do what the code expressly prohibits.;it is no doubt that section 397(2) it a bar to revisions against interlocutory order. but it will be noticed that the two jurisdictions, namely, revisional and inherent are different facets of the powers of the court. under section 397 the jurisdiction is available in order to satisfy itself as to the correctness, legality, or propriety of any finding, sentence or order recorded or pasted or as to the regularity f any proceeding of any inferior court. section 482 crpc on the..........of opinion in regard to the view that section 397 raises a complete bar against the exercise of inherent jurisdiction. my attention was drawn to some observations of this court contained in para no. 11 of har prasad v. radhey lal, 1975 raj lw 305. it was there remarked that the argument that an interlocutory order has been specifically made not revisable by the new code of criminal procedure and something which has been prohibited in the law, should not be set at naught by exercise of the inherent powers was not without force. the learned judge however declined to exercise his inherent powers not on this ground but on the ground that inherent powers should sparingly be used and only with a view to prevent an abuse of process of the court and to secure the ends of justice.8. the.....
Judgment:
ORDER

M.L. Jain, J.

1. This petition under Section 482, Cr.P.C. has arisen in the following circumstances:

Petitioners 1 to 6 are Khatedar tenants of Khasra Nos. 120 and 229 in village Setrawa which they had purchased on 29-3-73 from petitioners Nos. 8 and 9 Nain Singh and Kushal Singh for Rs. 3,000/- by a registered sale deed. This land at one time was the khudkasht land of Ajit Singh and Kushal Singh. On resumption of Jagirs they became khatedar tenants and had been so recorded in the revenue record from Samvat year 2013. In Samvat year 2028 Ajit Singh executed a will in favour of Nain Singh petitioner No. 8 in respect of his share in the aforesaid khasra numbers. After the death of Ajit Singh in Samvat year 2028 Nain Singh became the joint khatedar with Kushal Singh. It is how that the lands were sold by them to the petitioners and put in their possession.

2. Hamir Singh claimed that he was an adopted son of Ajit Singh and he claimed the aforesaid land to be entirely his even to the exclusion of Kushal Singh. Entries in the settlement and revenue record from the year Samvat 2013 until 2nd July, 1974, were also in his name. Khasra No. 229 was mortgaged by Ajit Singh to one Aam Singh on 30-11-67 for Rs. 1,044/- by an unregistered deed. Hamir Singh filed a complaint under Section 145, Cr.P.C. and also prayed for attachment on the basis of the deeds of adoption and mortgage as aforesaid.

3. It appears that the learned Sub-Divisional Magistrate, Jodhpur made the preliminary order and the order of attachment on 22-7-74. The learned Magistrate directed the S.H.O., Shergarh to take possession of the land and the standing crop. The petitioners filed a revision against this order in the Court of Session, Jodhpur. The learned Addl. Sessions Judge by his order dated 18-4-75 dismissed the revision petition holding that the order was an interlocutory one. The learned Judge observed that the learned Commentators of Dr. Nandlal's New Code of Criminal Procedure, 1973, have observed at page 908 of Volume I (IInd Edition 1974) that an order under Section 146, Cr.P.C. 1973 has none of the attributes of finality. When the subject of dispute is attached or placed in the custody of a receiver, he is custodia legis and his possession enures to the benefit of the party who is ultimately successful. Referring to the provisions of Order 39, C.P.C. the learned Judge was of the view that the order to appoint a receiver is not a final decision. If an interpretation otherwise were accepted, then, clause (a) of Sub-section (6) to Section 145, Cr.P.C. would become redundant in cases in which an attachment has been effected. Aggrieved by this order, the present petition has been filed.

4. The learned Counsel for the petitioners submitted that the order of attachment is final and this matter stands covered by a judgment of this Court in Umrao v.. Sheonarain, 1975 Raj LW 353 and the order of the learned Judge deserves to be quashed.

5. The learned Counsel for the non-petitioners made the following points:

(1) This petition in substance seeks a revision of the order of the learned Sessions Judge and also that of the Magistrate and both are barred; the former under Section 399(3) and the latter under Section 397(2), Cr.P.C. The express provision of these sections cannot be circumvented by a recourse to Section 482, Cr.P.C.

(2) The order of attachment passed is certainly an interlocutory order. The ground on which the order of attachment was held to be final in Umrao's case 1975 Raj LW 353 was that the proceedings under Section 145, Cr.P.C. come to an end as soon as an order of attachment is made, but this view is not correct because if it were accepted, the provisions of Sub-sections (4) and (6) of that section are rendered nugatory. As a matter of fact an attachment is a preliminary step in aid of final determination of rights and liabilities of the parties. As held in Sualal v. Nanchu, 1975 WLN (UC) 544 even after an attachment the jurisdiction of the Magistrate to withdraw the attachment or even the preliminary order continues to be there. If that is so, then, the proceedings under Section 145, Cr.P.C. do not come to an end. In the alternative, it was contended that an order of attachment made after hearing the parties may be considered to be a final order but such an order made ex parte without hearing the opposite party is in any case an interlocutory order. The view that prevailed in the learned lower Court is therefore, a correct view and the revision was rightly dismissed by it.

6. There are two facets of the first contention. One is that no revision lies against an interlocutory order. The other is that a defeated revisioner as in the present case has no right to come in second revision. In either case one cannot circumvent these provisions by a cover under Section 482, Cr.P.C.

7. There is a conflict of opinion in regard to the view that Section 397 raises a complete bar against the exercise of inherent jurisdiction. My attention was drawn to some observations of this Court contained in para No. 11 of Har Prasad v. Radhey Lal, 1975 Raj LW 305. It was there remarked that the argument that an interlocutory order has been specifically made not revisable by the new Code of Criminal Procedure and something which has been prohibited in the law, should not be set at naught by exercise of the inherent powers was not without force. The learned Judge however declined to exercise his inherent powers not on this ground but on the ground that inherent powers should sparingly be used and only with a view to prevent an abuse of process of the court and to secure the ends of justice.

8. The learned Counsel for the respondents then relied upon Kumar Singh v. Emperor AIR 1946 PC 169 : 47 Cri LJ 933 for the proposition that no court can claim inherent jurisdiction to exercise powers expressly taken away by legislation. But these observations were made in the context of Section 26 of the Special Criminal Courts Ordinance, 1942, which expressly provided that no court shall have authority to revise such order or sentence or to transfer any such case from any such court or to make any order under Section 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such court. It means that the court was not precluded from interfering with the order of the Special Criminal Court in any manner whatsoever which included exercise of inherent powers. I therefore, feel that the Privy Council decision is not any authority for the proposition which the learned Counsel is canvassing.

9. In Sankatha Singh v. State of Uttar Pradesh : AIR1962SC1208 the Sessions Judge dismissed an appeal as neither the appellants nor their counsel appeared. He later on set aside that order and directed rehearing of the appeal. This was held not permissible because Section 369 read with Section 424 of the Code makes it clear that the appellate court cannot alter or review its judgment once signed, except for the purpose of correcting a clerical error. Inherent powers were claimed for the Sessions Judge. But the Supreme Court repelled the contention because Section 369 read with Section 424 specifically prohibits the altering or reviewing of its order by a court. Inherent powers cannot be exercised to do what the Code specifically prohibits the court from doing. This case has no application because the provisions of Section 561A (or 482 New) were not under discussion.

10. This question has been directly a subject-matter of discussion in some of the recent judgments of the High Courts. The learned Counsel opened with Santlal Nagrath, Tis Hazari Delhi v. Kishanlal Suri, 1976 Cri LJ 215 (Delhi). In this case it was held that an order under Section 204, Cr.P.C. 1898, was an interlocutory order. A revision petition against such an order is clearly barred by Sub-section (2) of Section 397. This bar cannot be circumvented by having recourse to Section 482, Cr.P.C. which does not apply to cases which are covered by specific provisions of the new Code. The learned Judge however, went on to say that even if it is presumed for the moment that the petition is maintainable under Section 482, Cr.P.C. 1973, the petition has no merits. With due respect, if the legal position were as definite as is stated in the earlier part of the judgment, then, there was no point in discussing the merits of the petition. This shows that the court was not prepared to make a categorical pronouncement.

11. The next decision relied upon is Amarnath v. Kanwar Joginder Singh, 1976 Cri LJ 394 (Him Pra) wherein the learned Judge observed that no revision could be filed against an interlocutory order. What has been prohibited under Section 397(2) of the Code of Criminal Procedure cannot be held to be permissible under Section 482, Cr.P.C. and the High Court will only interfere in an extraordinary case where special circumstances are made out which render the order certainly illegal so that an abuse of process of court is prima facie made out. Suchi a case apart, there will be no interference when specially revision is prohibited under the statute. These observations only purport to say that! Section 397(2), Cr.P.C. does not raise a complete bar against the exercise of the powers under Section 482, Cr.P.C. which are available if special circumstances can be shown to exist.

12. Another case which was referred was B.S. Rao v. T.V. Sarma, 1976 Cri LJ 902 (Andh Pra). In this case, it was stated that an order of the Magistrate taking cognizance of a case against a person being an interlocutory order under Section 397(2), the High Court will not interfere with it under its inherent powers under Section 482. Such inherent powers cannot be invoked to do an act which would conflict with an express provision of law and other general principles of criminal jurisprudence, and therefore the bar under Section 397(2) cannot be got over by the invocation of the inherent powers under Section 482, Cr.P.C. According to Dassu v. Manitra, 1976 Cri LJ 1221 (All), Section 482 cannot be invoked for the purpose of circumventing express provisions under the Code. Thus, when a revision petition has been dismissed and no second revision lies under Section 397(2), Section 482, Cr.P.C. cannot be invoked.

13. In Chang Deo Kisan Jadhav v. Chindya Jain 1976 Cri LJ 1293 (Bom) the learned Judges observed that the facility of having a wrong or unjust order set aside, which was available to the litigant before the new Code, was so extensively abused that it has been a major factor in delaying disposal of cases. With a view to stop this abuse, the Parliament has enacted Sections 397(2), 397(3) as well as 399(3). It is not proper to construe Section 482 in such a way as to nullify the legislative bar to the entertainment of the revision applications against any interlocutory orders in criminal proceedings. The learned Judges then, proceeded to dismiss the application on the ground that the impugned order is interlocutory and that the court will ordinarily not interfere with such an order in exercise of its powers under Section 482, Cr.P.C. It simply shows that powers under Section 482 can be exercised in the circumstances which are extraordinary.

14. Thus, these are the cases of B.S. Rao v. V.T. Sarma, 1976 Cri LJ 902 (Andh Pra) and Dassu v. Manitra only which support the view urged by Mr. Tibrewal. As against this, the learned Counsel on the other side referred me to Sarjoo V. Babadin, 1975 Cri LJ 1562 (All). In this case, it was observed that Sections 397 and 399 only bar the revisional jurisdiction of the High Court, If that jurisdiction has already been invoked by a party before the Sessions Judge, it does not and cannot bar any other jurisdiction of the High Court which is inherent and not revisional. These are two different jurisdictions and it cannot be said that the inherent jurisdiction is the same as the appellate or the revisional. The use of the words 'no further applications' occurring in Section 397(3) has the effect only to restrict the revisional powers because the words 'no other application' can have reference only to an application in revision. Similarly, what is barred by Section 399(3) are further proceedings by way of revision and not an independent proceeding under Section 482, Cr.P.C. In short, the powers under Section 482 stand intact and unaffected by Sub-section (3) of Section 397 and Section 399, Cr.P.C.

15. In Dhoiram Sahu v. Sambhudas, (1976) 42 Cut LT 241 it was observed that apparently the provisions of Section 397(2) only bar the revisional jurisdiction but do not bar any other jurisdiction of the court which is inherent and not revisional. These are two different jurisdictions. Inherent jurisdiction of this Court remains unaffected by the aforesaid provisions in Sub-section (2) of Section 397, Cr.P.C.

16. In President Hindustan Motors Ltd. v. K.M. Joseph, 1976 Ker LT 36 a complaint was quashed under Section 482, Cr.P.C. because the allegations in the complaint taken at their face value and accepted in their entirety did not constitute the offence alleged and inherent jurisdiction can be exercised.

17. Speaking for myself, I have taken a view that Sections 397 and 399, Cr.P.C. do not bar the inherent jurisdiction of the court. In Mahadevalal v. Firm Chunni Lal Dilsukh, 1976 Cri LR (Raj) 303. I observed that a second revision by a defeated revision petitioner is barred under Sections 397(3) and 399(3), Cr.P.C. but at the same time the jurisdiction of the High Court to act under Section 482, Cr.P.C. is available in order to give effect to any order under the Code or to correct any proceedings which amount to an abuse of the process of the court or to otherwise secure the ends of justice, anything in the Code notwithstanding. I do not consider that there was anything in Sections 397 or 399, Cr.P.C. which limits or bars exercise of inherent powers under Section 482, Cr.P.C. The only limitation that one can conceive of in the matter of exercise of these powers, is that the High Court shall not under Section 482, Cr.P.C. make an order which runs counter to, or is in clear violation of or in direct conflict with any express or specific provisions in the Code.

18. In Satya Narain v. Shri Prem Singh, 1976 Cri LR (Raj) 357, I had one more occasion to examine the point again. In view of the Supreme Court decision in R.P. Kapur v. State of Punjab : 1960CriLJ1239 I was inclined respectfully to fall in line with the view taken in Sarjoo v. Babadin that revisional jurisdiction is different from the jurisdiction which the High Court exercises in virtue of its inherent powers. As a matter of fact Section 482 itself provides that the inherent jurisdiction is available in spite of anything contrary contained in the Code if any of the three situations mentioned in the section are shown to exist. I even venture to say that there is nothing in Sections 397 and 399 which prevents the High Court to revise an order made by the Sessions Judge in a revisional capacity if it is manifestly illegal, irregular or improper. Rather, Section 397 seems to permit this. These Sections 397(3) and 399(3) only purport to shut a second revision of the same initial order.

18A. I see no reason to depart from the view which I have been taking. It is no doubt true that Section 397(2) is a bar to revisions against interlocutory orders, But it will be noticed that the two jurisdictions, namely, revisional and inherent are different facets of the powers of the court. Under Section 397 the revisional jurisdiction is available in jorder to satisfy itself as to the correctness, legality, or propriety of any finding, sentence or order recorded or passed or as to the regularity of any proceeding of any inferior court. Section 482. Cr.P.C. on the other hand, provides to preserve the powers to make such order as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It hardly needs any comments or explanation to show that the powers under the aforesaid two sections are widely different. They do not coalesce or overlap. One cannot be substituted for the other.

If it was an intention of the framers of the Code that inherent powers shall not be exercised even in matters of interlocutory order, then there was nothing to prevent them to specifically provide for the same. It is difficult to sustain an interpretation that the High Court shall stand by and watch in helplessness any injustice or abuse of process of court simply because it has arisen out of an interlocutory order. It is not a jurisdiction merely to examine the correctness, legality, propriety or regularity of an order. It is far more wide and empowers the court to step in wherever there is abuse of the process of the court or there is a need to secure the ends of justice or it is necessary to give effect to any order under this Code, While exercising such jurisdiction, the court certainly cannot do what the Code expressly prohibits it from doing nor can it make an order which is in contravention of or in direct conflict with any provision of the Code. Whenever a court intervenes under Section 482, Cr.P.C. it cannot be said that it is exercising the powers of revision.

19. I therefore, reject this objection.

20. The second controversy centres round the question whether the order made under Sub-section (1) of Section 146, Cr.P.C. is a final order or not. In Chhagan Singh v. State. 1976 Cri LR (Raj) 362. I have held that the order of Sub-section (1) of Section 145 is not an interlocutory order. In Sua Lal v. Nanchu I had taken a similar view that a preliminary order becomes final if the Magistrate is not called upon to cancel it or refuses to cancel it under Sub-section (5) of Section 145, Cr.P.C.

21. I further held that it does not appear to be the intention of the legislature that once the subject of dispute is attached and the receiver is appointed, the jurisdiction of the Magistrate to cancel the preliminary order under Sub-section (5) of Section 145 or to withdraw an attachment under the proviso to Sub-section (1) to Section 146, Cr.P.C. is taken away. While giving this decision, I was aware of the observations of this Court reported in Umrao v. Sheonarain, 1975 Raj LW 353 that as soon as the land is attached in a case of emergency, the proceedings under Section 145, Cr.P.C. should come to an end, and that the order under Sub-section (1) of Section 146 is a final order. What I purported to say was that in spite of appointment of a receiver, the Magistrate still retained jurisdiction under Sub-section (5) of Section 145, Cr.P.C. to cancel the preliminary order even though a competent court may be seized of the matter. I have reiterated this view in greater detail in Chhagan Singh v. State, 1976 Cri LR (Raj) 362. In that case, I had come to the conclusion that even apart from the provisions of Sub-section (5), the Magistrate has got powers at any time to cancel or withdraw his preliminary order and terminate the proceedings even acting on his own and even without hearing the parties or recording any evidence I had also pointed out that a view has been expressed by S.C. Sarkar, Author of the Law of Criminal Procedure (1975 Edition) at page 197 which is contrary to Umrao v. Sheonarain, 1975 Raj LW 353.

22. So, the controversy continues unresolved as to which order in criminal proceedings is final and which one is an interlocutory one.

23. In Dhola v. State, 1975 Raj LW 22 : 1975 Cri LJ 1274 Beri C. J, examined this question and observed that the world of law has long been acquainted with the word 'interlocutory' although it has found its place in the Code of Criminal Procedure probably for the first time. The learned Chief Justice referred to some English and American decisions and to Jowitt's Dictionary of Law, and then held that on the basis of the survey, it is reasonable to say that an interlocutory order is one which is made at some intermediate stage of the proceedings generally to advance the cause of justice for the final determination of the rights between the parties.

24. I will now refer to seme decisions of the Federal Court and the Supreme Court on this very question. These relate to construction of the expression 'final order' occurring in Section 205(1) of the Government of India Act, 1935 and Article 134 of the Constitution of India which provided for appeals to the Federal Court and the Supreme Court in regard to criminal matters.

25. In Kuppuswami Rao v. King AIR 1949 FC 1 : 49 Cri LJ 625 it was observed that a final order must be an order which finally determines the points in dispute and brings the case to an end. To constitute a final order it is not sufficient merely to decide an important or even vital issue in the case. But the decision must not keep the matter alive and provide for its trial in the original way. In a criminal case, the expression 'final order' cannot cover a 'preliminary order' or 'interlocutory order' made at a preliminary objection such as one of sanction under Section 197, Cr.P.C.

26. In State of U.P. v. Col. Suian Singh : 1965CriLJ94 it was held that an order cannot be said to be a 'final order' within the meaning of that expression in Article 134 of the Constitution if it does not of its own force bind or affect the rights of the parties. If an order relates only to a procedural step and indirectly affects a third party to the proceedings, it is not deprived of its interlocutory character.

27. In Mohanlal Maganlal v. State of Gujarat : 1968CriLJ876 this question again came up for decision. A majority of the esteemed Judges observed that no single general test for finality of a judgment or an order has so far been laid down. The reason probably is that a judgment or order may be final for one purpose and an interlocutory for another or final as to part and interlocutory as to part. The meaning of the two words 'final' and 'interlocutory' has, therefore, to be considered separately in relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which determines the principal matter in question is termed final. It may be final although it directs enquiries or is made on an interlocutory application or reserves liberty to apply.

28. According to Halsbury's Laws of England, 3rd Edition, Volume 22, page 742-743, an interlocutory order though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals, Even an order ex facie interlocutory in character has been held to be final if it finally disposes of the proceedings though the main controversy between the parties remained undisposed of, vide State of Orissa v. Madan Gopal Rungta : [1952]1SCR28 .

29. The observations of the Supreme Court indicate that it is not possible to devise an all pervasive or a sort of an arithmetic formula to determine the final or intelocutory nature of an order. It may be final for one purpose and interlocutory for another. The learned Counsel for the non-petitioners, Mr. Tibrewal contends that the order under Sub-section (1) of Section 146 Cri.P.C. will be an interlocutory order if it is made without hearing the parties but it shall become final if the order is made absolute after the hearing of the parties To my mind, the argument of Mr. Tibrewal is not sound because an order in case of emergency will always be made ex parte and it will be in a very limited number of cases that an order in any emergency will be made after hearing the parties. The nature of the order cannot be determined solely by the fact whether it is made ex parte or after hearing. I therefore, agree with the view taken in Umrao v. Sheonarain, 1975 Raj LW 353 that the order of attachment under Sub-section (1) of Section 146, is a final order in the sense that it is amenable to revision. The order is liable to be withdrawn under the proviso to Sub-section (1) of Section 146 and can fall through if the preliminary order itself is cancelled under Section 145(5). That will also not make it interlocutory. The contention of Mr. Tibrewal is rejected.

30. It does not however, mean that an order of attachment finally disposes of the principal controversy as to possession. From the provisions of Section 146(1), it appears ex facie that after attachment, the Magistrate can do nothing more than either to cancel the preliminary order or to withdraw the attachment. If that is not the intention, then it is a case of highly inept draftsmanship. If the Magistrate, after emergency attachment cannot exercise jurisdiction and proceed to decide the matter of possession, then the whole purpose of Section 145 and even his own order directing the parties to place their cases before him can be frustrated by the Magistrate by making an order of attachment and by refusing to take any further action. However, this not being necessary for the purpose of this case, I need not express any opinion whether after attachment, the Magistrate can proceed to enquire into the matter of possession or not.

31. The result of the aforesaid discussion is that this petition is entertainable under Section 482, Cr.P.C. The order of the Sub-Divisional Magistrate directing an attachment was a final order and could be a subject-matter of revision and the learned Addl. Sessions Judge was not correct in holding it to be interlocutory.

32. Accordingly, the impugned order of the learned Addl. Sessions Judge is set aside and he is directed to decide the revision petition afresh on merits.


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