Mian Jalal-ud-Din, C.J.
1. These three revisions petitions raise a common question of law as regards the interpretation of Section 435(4-a) of the Code of Criminal Procedure as amended by Act No. XXXVII of 1978.
2. In criminal revision No. 28 of 1979, Brij Lai Chakoo versus Abdul Ahad Nishati, the Court of the City Magistrate Srinagar, has initiated proceedings under Section 145 Cr. P. C. in respect of one single storeyed house with attic and land measuring six kanals appurtenant thereto situate at Gupt Ganga, Nishat Srinagar, and after drawing up the preliminary order as envisaged by Section 145(1) of Cr. P. C. has also proceeded to attach the subject matter of the dispute under proviso to Section 145(4) Cr. P. C. In the revision before us the petitioner has challenged the legality of the order of the magistrate both under Section 145(1) and proviso to Section 145(4) Cr. P. C. In the other two cases namely revisions Nos. 34 and 41 of 1979, viz. Raheman Malik and Ors. v. Ghulam Nabi Mir and Ahad Sheikh v. Mehda Sheikh and Ors. the Courts of the Tehsildar Executive Magistrate Ganderbal and the Tehsildar Executive Magistrate Sonawari, respectively have attached the properties under proviso to Section 145(4) Cr. P. C.
3. When the aforesaid revision petitions came to be heard by one of us, a preliminary Objection was raised that the revisions were not competent in view of the provisions of Section 435(4-a) which barred the jurisdiction of revisional courts to entertain a revision against an interlocutory order. It was debated that the order made under Section 145(1) and also under proviso to Section 145(4) Cr. P. C. are mere interlocutory orders and not final orders, and therefore, no revision was maintainable under Section 435(4-a) Cr. P. C. In view of the importance of the question raised, which was likely to arise in a number of cases, the cases were referred to the Full Bench for an authoritative pronouncement Accordingly these cases have been placed before us.
4. We have heard the learned Counsel for the parties at length.
5. It would be advantageous to reproduce Section 435(4-a) of the Cr. P. C. as amended:
(4-a). The powers of revision conferred by this section shall not be exercised in relation to interlocutory order passed in appeal, enquiry, trial, or other proceedings.
6. The scheme of the above mentioned rule of procedure is to eliminate laws delays. The Legislative policy behind the amendment of the section is to accelerate the disposal of the criminal cases in the courts. It is with this intention that Section 435(4-a) Cr. P. C. has been engrafted in the Code. Experience has shown that in many cases parties resort to revision against mere interlocutory orders which are even of administrative nature and thus delay the disposal of the cases. Legislature has, therefore, in its wisdom barred the jurisdiction of the revisional courts to entertain revisions against mere interlocutory orders.
7. The moot question for consideration is as to what is an interlocutory order. The expression 'interlocutory order' connotes an order which is not final. But it cannot be said that every interlocutory order is opposite to final order. May be that an interlocutory order decides the rights of the parties even though it is passed at an intermediary stage of the proceedings. It may be an order that is passed at the moment and may affect the rights of the parties in the proceedings. Such an order cannot be said to be merely interlocutory. The expression 'interlocutory order' has been the subject of interpretation before some of the Indian High Courts as also the Supreme Court of India.
8. In Nageshwar Prasad Singh v. State of Bihar reported in 1978 Cri LJ NOC 57 (Pat), the term 'interlocutory order' has been understood to mean an order made during the progress of a proceeding upon some incidental matter arising out of the proceeding. Obviously it is not an order finally determining the right of the parties, but an order at intermediate stage of the proceedings for the purpose of advancing the proper decision of the subject matter of dispute. That was a case where the magistrate had decided to take cognizance of an offence by holding an enquiry under Section 202 Cr, P. C. It was held that an order of holding the enquiry under Section 202 Cr. P. C. was merely an interlocutory order and was not revisable.
9. In Ankaputtaswamy v. Papegowda reported in 1978 Cri LJ 1233 (Kant), the Kamataka High Court while determining the scope of Section 397(2) (which corresponds to Section 435(4-a) of the State Code) observed that the term 'interlocutory order' is to be understood in the context in which it is used and also keeping in view the broad scheme of the Code. Where the accused questions the very jurisdiction of the court to try him or he questions the correctness of the procedure followed by the trial court, these are matters which substantially affect his rights. Therefore, the decision of the appellate court that the trial court has no jurisdiction to do so or that the issue of summons or warrant calling upon the accused to appear before the court to face the trial or enquiry was bad for want of prima facie case against him or an order calling upon him to show cause as to why he should not execute a bond to keep peace or an order initiating action under sections 145 and 146 were bad for having been dealt with in a mechanical manner and without complying with the procedure involve were orders, though of interim nature, nevertheless substantially affected the rights of the accused, and therefore, could not be construed as mere interlocutory orders within the meaning of the aforesaid sub-section and, therefore, the revision was not barred.
10. The Calcutta High Court in Biswa Nath Agarwalla v. State 1976 Cri LJ 1901 (Cal) observed that no single general test for finality can be laid down, as final or interlocutory nature of order has to be considered in relation to the particular purpose for which it is required. A judgment or an order may be final for one purpose and interlocutory for another or final as to part and interlocutory as to the second part. However, generally speaking a judgment or order which determines the principal matter in question is termed as final. But an order which does not finally settle the controversy at rest and keep the action alive is not final. To quote an instance, a framing of charge is nothing but a written formulation of specific accusations made with certainty and communicated to the accused so that he may defend himself. Formulation of the charge, therefore, cannot be said to finally determine the issue and is, therefore, not interlocutory.
11. The Supreme Court in the case of Amar Nath v. State of Haryana reported as : 1977CriLJ1891 , observed that the expression 'interlocutory order' has been used in this section in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim nature 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(2). The 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 mere interlocutory orders so as to be outside the purview of the revisional jurisdiction of the High Court.
12. Again the Supreme Court in the case of Madhu Limaye v. State of Maharashtra reported in : 1978CriLJ165 , laid down:
Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. But 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 Section 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 Chapter XXIX of the Code. This does not seem to be the intention of the legislature when it retained the re-visional power of the High Court in terms identical to the one in the 1898 Code.
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 in tact 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.
13. Their Lordships proceeded to observe that bar under Section 397(2) which corresponds to Section 435(4-a) of the State Code, will not operate to prevent the abuse of the process of the court and to secure the ends of justice and to redress the grievance of the aggrieved party, where the High Court determines the matter in appropriate cases under its inherent powers under Section 482 Cr, P. C. Section 397(2) cannot limit or affect the exercise of inherent powers of the High Court but that power must be exercised very sparingly only to promote the ends of justice,
14. The above definition of the expression 'interlocutory order' is not exhaustive but illustrative. Every order passed by the subordinate court is to be construed on its own merits and no hard and fast rule can be laid down for the strict interpretation of the expression 'interlocutory order'. There may be cases which fall on the border line as observed by the Supreme Court. Such kind of orders may be taken to be the orders of the type falling in the middle course.
15. In the instant cases, before us, the assumption of jurisdiction by the magistrate under Section 145 Cr. P. C. and the making of the preliminary order under that section cannot, in my opinion, be said to be a mere interlocutory order. The foundation upon which the jurisdiction of the magistrate to proceed under Section 145 Cr. P. C. is based is on the satisfaction of the magistrate that there is a dispute relating to possession of immovable property, and that there is an apprehension of breach of the peace on the spot.
16. Take a case where the magistrate assumes jurisdiction in which one of the ingredients is missing. Then surely the order of the magistrate In initiating proceedings and in attaching the property is without jurisdiction. Or take a case where the dispute with regard to the subject matter has already been decided by the civil court in favour of a party but the other party brings an action under Section 145, Cr. P. C, The magistrate in utter disregard of the decision of the civil court takes action under Section 145, Cr. P. C. and also proceeds to attach the property under proviso to Section 145(4), Cr. P, C. Then in this case also the order will be without jurisdiction. In such cases it cannot be said that the orders are merely interlocutory orders and cannot be made subject of revision and that Section 435(4-a) stands as a bar to the entertaining of the revision. Where a magistrate in exercise of the power under proviso to sub-clause (4) of Section 145, Cr. P. C. proceeds to attach the subject matter of dispute, the order, undoubtedly affects the possessory right of a party. Although the order of attachment is made at an interim stage of the proceedings, nevertheless, it is an order of moment which has the effect on the rights of the party in possession and cannot therefore be said to be a mere interlocutory order so as to bar the revisional jurisdiction of the High Court. Under proviso to Section 145(4) the court can order attachment in cases of emergency. Cases are not wanting where magistrates make use of this provision of law arbitrarily and in routine manner. The order has the effect of dispossessing a person in possession. The aggrieved party can come to the revisional court and show that there were no emergent circumstances justifying the magistrate to take action under that proviso. Or a party concerned may show to the court that the magistrate had no jurisdiction to make such an order or that the order was made regardless of the procedure as laid down in Section 145 Cr. P. C.
17. It is worthy to mention here that the orders of the category as mentioned above though not conclusive of the main dispute are, undoubtedly, conclusive as to the subordinate matter. That such an order is amenable to the revisional jurisdiction of the High Court cannot be gainsaid. In Smt. Parmeshwari Devi v. State reported in : 2SCR160 , while dealing with the subordinate matter, their Lordships of the Supreme Court observed that even if the order Is directed against a person who is not a party to enquiry or trial, he can file a revision petition for setting that order aside as the order purports to affect him or her in the proceedings. An interlocutory order though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals. It may thus be conclusive with reference to the stage at which it Is made and it may be conclusive as to a person who is affected by the order but who is not a party to the enquiry or trial against whom it is directed. That was a case where in a complaint summon was issued to a lady to produce some documents. The lady filed her reply expressing her inability to produce the requisite documents stating the circumstances pertaining thereto. The Magistrate, however, issued order directing her to attend the court in person for purpose of examining the lady. It was observed that such an order was not an interlocutory order against the lady as it was illegal and adversely affected the lady as she could have no opportunity to challenge it at that stage.
18. It is true that under Sub-clause (5) the magistrate can drop the proceeding? if it is shown to him during the pendency of the proceedings that no apprehension of breach of peace exists or that there is no dispute. But this power is given to the magistrate for the purpose of bringing the case to its logical end by passing a final order which will have the effect of closing the very case. The operation of this Sub-clause will not have the effect of making the order passed under Section 145(1) and proviso to Section 145(4) interlocutory so as to mean that they merely advance the proceeding to its logical end. In the view that I am taking in the matter, I am fortified by the observations made in 1978 Cri LJ 1233 (Kant), (supra).
19. From the foregoing reasons, I am of the view that an order made under Section 145(1) as also under proviso to Section 145(4) Cr. P. C. cannot be said to be merely interlocutory orders and the revision against such orders is not barred under Section 435(4-a).
20. The reference is answered accordingly. The cases will now go to the respective Bench or Benches for disposal according to law.
A.S. Anand, J.
21. I have had the advantage of going through the elaborate judgment prepared by my Lord the Chief Justice. I am in agreement with the reasonings and the conclusions of his Lordship that an order under Section 145(1) Cr. P. C. is revisable, if the challenge is to the jurisdiction of the court, and the bar under Section 435(4-a)' Cr. P. C. is not attracted.
22. I, however, find it difficult to agree with my Lord, the Chief Justice, that an order passed by the magistrate in exercise of the powers under the proviso to Section 145(4) Cr, P. C. is not an 'interlocutory order' and with due respects I wish to accord my dissent from the view expressed by my Lord the Chief Justice as regards the maintainability of a revision petition only against an order of the magistrate under the proviso to Section 145(4) Cr. P. C. My Lord has given the facts of the cases in some details and I need not reproduce the same.
23. In Manohar Nath Sher v. State of Jammu and Kashmir Criminal Revn. No. 22 of 1079 (F.B.) decided on 31-7-1979, (J & K), while considering the nature of an order granting claim of privilege by the State to the production of a document, I had an occasion to go into the question of the nature of an 'interlocutory' order. I opined as follows:
The legal world has long been acquainted with the expression 'interlocutory order' although it has found its place in the Code of Criminal Procedure, probably, for the first time. I am of the opinion, that the expression 'interlocutory order' would not change its complexion, when applied to the Code of Criminal Procedure. In the Code, there is no definition of the term 'interlocutory order' and it would, thus, be permissible upon the well accepted principles of construction of statutes, to refer the meaning given to the same expression in other statutes, provided the later is not repugnant to the context in which it has been used in the Code of Criminal Procedure. In the civil law, it is well settled, the expression 'interlocutory order' implies an order which is made during the progress of the case and relates to some incidental matters which do not finally determine the rights of the parties in controversy. The object of enacting the bar to the revision of 'interlocutory orders' in the Code of Criminal Procedure, by adding Section 435(4-a) to the Criminal Procedure Code by the legislature which reads thus:
(4-a). The powers of revision conferred by this section shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings.was to avoid delay in the disposal of cases as by coming up in revision against 'interlocutory orders' there occurs delay in the disposal of criminal proceedings.
Generally speaking, an 'interlocutory order' is one which is passed at some intermediate stage of proceeding to advance the cause of justice, for the final determination of the rights between the parties and are procedural steps taken in an adjudication for assisting the parties in the prosecution of their cases. However, if the decision on an issue brings to an end a suit or proceedings, the order, even, if made at an intermediate stage, would be a 'final order' but if the suit or proceeding is still alive, in spite of the order, one way or the other, and has got to be tried in the ordinary way, no finality is normally attached to such an order, at whatever stage during the proceedings it-may have been made. Thus, an interlocutory order made by a court without jurisdiction, can be interfered with in revision at an early stage, because an order without jurisdiction is a nullity in the eye of law and if proceedings are allowed to continue in such a case, the harassment of the litigant which the amendment sought to avoid would be much greater, as he would have to face trial, which ultimately will have to end in his favour. In those cases the bar of Section 435(4-a), Cr. P. C. would not be attracted as the acceptance of the plea of the accused would bring those proceedings to an end.
23-A. Let us now examine the provisions of Section 145(4), Cr. P. C. Section 145(4), Cr. P, C. reads thus:
(4) Inquiry as to possession.- The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:
Provided that the Magistrate, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein:
Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date.
Provided also that, if the magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.
24. A bare reading of the 3rd proviso to the sub-section shows that an order of attachment under the sub-section is only a temporary order in its nature and scope. Such an order is passed only during the pendency of the proceedings under Section 145, Cr. P. C and is not an order, Independent of those proceedings. The use of the expression 'at any time' and 'pending its decision' occurring in the third proviso to the sub-section make it implicit that the order is only an interim order, which can even be set aside by the court making that order itself. No finality can as such be attached to such an order.
25. Meaning of the expression 'interlocutory' has to be considered separately in relation to the particular provision for which it is required to be interpreted. No singular test can be laid down as a determinative test so far as the nature of the order is concerned. An order, for example, may be conclusive with respect to the stage at which it is made and may also be conclusive as regards the person, against whom it is directed though it may have been passed at an intermediate stage and such an order would be revisable irrespective of the bar contained in Section 435(4-a) Cr. P. C. (See : 1968CriLJ876 ).
26. Thus as laid down in 1977 Cri. L, J. 1593 (On) the 'orders which are passed at an interlocutory stage of a criminal proceeding, but are for all intent and purposes final and cannot be corrected or their effect cannot be nullified at any later stage, cannot and should not be regarded as interlocutory Order'.
27. In the aforesaid case it was held that an order remanding the case is , 'interlocutory because by that order the court below had washed its hands clean of the matter pending before it. By an order of remand, the case before the court, remanding the case, had come to an end and so far as that court is concerned it is a final order. The same cannot be true of an order passed under Section 145(4) third proviso Criminal Procedure Code which, as already noticed, explicitly states that the order is interim 'pending decision of the court'. It is not disputed that an order of attachment can be vacated by the very court which has made the same during the pendency of the proceedings.
28. In Smt. Premlata v. Ram Lubhaya 1978 Cri LJ 1822 (All) it was opined as follows:
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 and the entire procedure prescribed 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 Cr. P. C. by the Magistrate and he gives his verdict holding one party to be in possession of the property in dispute and forbidding 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 protective measure to prevent braking 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.
29. I am in full agreement with the aforesaid view as regards the nature of an order of attachment passed during the pendency of the proceedings under Section 145 Cr. P. C.
30. An order of attachment under Section 145(4) Cr. P. C. has only a limited purpose viz. to prevent the imminent danger of breach of peace. It is, by its very nature, a 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(4-a) Cr. P. C.
31. There is yet one more aspect of the case which impels me to hold such an order to be interlocutory.
32. Section 145 Cr. P. C. envisages different orders at different stages of the proceedings and it would be defeating the object of Section 435(4-a) Cr. P. C. to hold that all such orders are 'final' and not interlocutory. Where a section envisages more than one order during the various stages of the proceedings, only such an order can be treated as final under that section, which has the effect of concluding the proceedings one way or the other, either as regards the stage of those proceedings or as regards the party against whom it has been made. An order of attachment does not conclude the proceedings at any stage because of the express phraseology of the provisions of the third proviso to Sub-section (4) of Section 145 Cr. P. C. and as such cannot by any stretch of imagination be treated as a final order.
33. : 1977CriLJ1891 (Supra) and : 1978CriLJ165 do not, in my opinion, lay down that even such orders, which are purely of a temporary nature and interim in character, are 'final' orders revisable by the High Court. In both those authorities, the principle that was laid down was that if the order under revision had the effect of final determination of the action, in as much as the decision of that order, if given in favour of the party challanging the order, would bring to an end the proceedings in so far as that party is concerned, such an order would be 'final' and revisable and not otherwise. Both those judgments can, therefore, have no application to an order of attachment passed under Section 145(4) 3rd proviso Cr. P. C. which is purely of an interim nature.
34. In view of the aforesaid discussion, I am of the opinion, that in view of the bar contained in Section 435(4-a) Cr. P. C., no revision would lie only against an order of attachment made under the third proviso to Sub-section (4) of Section 145 Cr. P. C., where there is no defect in the jurisdiction of the court in making the preliminary order under Section 145(1) Cr. P. C.
G.M. Mir, J.
35. I have had the benefit of going through the very elaborate judgments proposed by my Lord Chief Justice and my learned brother Anand J. I would however, like to add a few words of my own.
36. Without referring to and quoting from various judgments mentioned in the proposed two judgments and also cited at the bar, from some of which quotations have been reproduced in the other two judgments, I would like to say that in my view the preliminary order passed by the Magistrate under Sub-section (1) of Section 145 Cr. P. C. is not by itself an order which could be said to be a revisable order. In my view the preliminary order is in the nature of an interlocutory order and as such a revision against the same was barred under the provisions of Section 435(4-a) Cr. P. C. The preliminary order was subject to further scrutiny by the Magistrate himself and at any time if he is satisfied on having been shown that no such dispute as referred to in his preliminary order exists or has existed may reconsider the whole matter and cancel the same. It was in Section 145 in the Code of Criminal Procedure itself that such powers had been vested in the Magistrate. Sub-section (5) of Section 145 Cr. P. C. may be referred to in this regard with benefit. The sub-section reads as follows:
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final.
37. From a mere reading of this sub-section, it will be obvious that the Magistrate himself was empowered to cancel the preliminary order immediately after it was shown to him any party to the dispute or any other person interested that no dispute with regard to any land or water or the boundaries thereof within local limits of his jurisdiction ever existed or exists at present. He is empowered to cancel the preliminary order in that case and drop the proceedings. Sub-section (5) clearly lays down that if the Magistrate was not so satisfied and confirms the preliminary order, the same would be final. I am therefore, of the view that unless the Magistrate reconsiders the preliminary order under the provisions of Sub-section (5) of Section 145 and either confirms or cancels the order passed under Sub-section (1) it is not revisable.
38. An order passed under 3rd proviso of Sub-section (4) of Section 145 Cr. P. C. is in the nature of an interlocutory order as a revision against this order was not likely to conclude the whole dispute between the parties whatever the result of the revision. No doubt, the attachment of the subject matter of dispute was an order that may affect the rights of the parties concerned but in view of the specific provisions of Section 435(4-a) Cr. P. C. I am of the view that as a decision in revision in this aspect of the case would not finally conclude the proceedings before the Magistrate, the order by itself was not revisable.