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TMI Blog1980 (9) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... revisional jurisdiction must pale in the background, though, I would hasten to add that there is abundant justification in the interference by the learned Additional Sessions Judge even in the revisional jurisdiction. However, as Shri Desai, the learned counsel, has fully canvassed that point and as such with due deference to him as also it is stated at the Bar that the Sessions Court is confronted with this aspect time and again, I deem it proper and desirable to refer to it thought not in all its details as I am firm in my opinion that in reality it is hardly capable of creating any controversy. 22. To say that the attachment of the flat and its sealing is an interlocutory order obviously would be, even ex facie misconception of the notion of an 'interlocutory order'. I can derive full reinforcement to this conclusion on the basis of certain observation in some of the judicial pronouncements which the Court would be well justified to rely upon for furnishing an analogy and guidelines. What is this concept of 'interlocutory order' has been highlighted in Amar Nath v. State of Haryana, 1977 CriLJ 1891, which is reiterated in Madhu Limaye v. State of Maharashtra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terlocutory order. A reference was made to the ratio of certain other decisions. The category of order merely of procedural nature without in any manner affecting the rights and liabilities of the parties has been illustrated, such as orders summoning witnesses, adjourning cases, calling for reports, discovery, production and inspection of documents etc. Reliance was also placed on the ratio in Mohanlal Maganlal Thakkar v. State of Gujarat, 1968 CriLJ 876, which would set at rest the controversy that is sough to be raised on the ground that the order does not finally decide the proceeding but the controversy still remains alive and even such a contingency could be taken out of the pale of an interlocutory order; when it was observed as (at P. 882 of 1968 Cri LJ) : Finality of an order could not be judged by the correlating that order with controversy of the parties. The fact that the controversy still remains alive was irrelevant. Making a reference to certain other decisions, it was also indicated that an order granting temporary injunction may not necessarily be an interlocutory order as it decides some right of the parties; though the said observations arose out of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislature kept intact 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 to us that the real intention of the legislature was not to equate the expression interlocutory order as invariably being converse of the words final order There may be an order passed during the course of a proceeding which may to be final in the sense noticed in Kuppuswami's case, but it may not be an interlocutory order - pure or simple. Some kinds of orders may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders, They may not be final orders for the purposes of Article 134 of the Constitution, Yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397(2) ...... 24. Bearing in mind the guidelines enunciated in the ratio of various judicial pronouncements, the scheme of the Code in that behalf, the object for enacting or incorporating the said provision and the basic concept of the ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. (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) So also, 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'. 25. Applying various tests laid down in the said guidelines, it would be manifest that an order under section 146 of the Code of Criminal Procedure, directing attachment and sealing of the flat can never be embraced by the term interlocutory order . Such an order obviously is not interim or temporary, pure and simple. It also cannot be said to assume a character of merely a step-in-aid of the procedure. This obviously is an order of moment. In addition thereto it is further clear, as enunciated by the Supreme Court in the ratio of the decisions already cited that it is not only an order, affecting the rights of the parties, but even an order affecting any particular aspect of the proceeding can be lifted out of the sweep of interlocutory order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion even for an interim period till the disposal of the main petition. Though this may not be of much importance inasmuch as the requirement of Section 146 is only vis-a-vis the existence of emergency and, therefore, it is in that limited field that I have considered this other side of the coin. 26. Then we have to consider another facet which logically flows out of this situation. If the learned Magistrate declines to pass an order of attachment and sealing of the flat and if by chance his assessment of the situation about the existence of emergency is wrong, then there is always a potential danger, if in reality the emergency exists. In that event in a given case, the situation really may be so explosive as even a spark would be enough to ignite and explode the situation in which event refusal to pass an order would obviously entail into affecting one of the most important aspects of the proceeding. The existence of emergency as contemplated by Section 146 has some reference, to a limited extent, to the provisions contained in Section 145, as now it is well settled that both the provisions are to be read and blended together. The concept of emergency, therefore, suggests th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether, wherein the Supreme Court has held that it is not necessary to refer the matter to the Civil Court as the authority contemplated therein is the learned Magistrate himself. Further important change is that under the new Code such an order can be passed only after making a preliminary order under Section 145(1) of the Code of Criminal Procedure. 28. A combined reading of all these features would high-light and project some material aspects. In the first instance, an order under Section 146 holding the existence of emergency can be passed only after the preliminary order is passed under section 145(1). This would again mean that it is only after the satisfaction of the learned Magistrate as contemplated by Section 145(1) that such emergent orders can be passed. This in turn would mean that it is founded on an application of judicial mind and the preliminary order as well as emergent order both can be equated as being of judicial character, which in turn would mean that it cannot be an arbitrary matter. This would logically lead to another inference that at least to a limited extent the justification for the satisfaction of the learned Magistrate on both the counts cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot claim as of right and insist on interfering with the order though in a fit case Court is very much likely to upset the impugned order. So also, the discretionary nature is likely to carry with it some element of uncertainty. As against this, the revisional powers, though to be utilised in a restricted sense, about examining the correctness, illegality or propriety of the order, yet can be well utilised with some force and certainty in respect of such impugned orders, if of course, the finding or order falls in either of the three categories and in which event the aggrieved party can certainly impress upon the Court to interfere with the impugned order with more certainty. It is against this background that the aspect of judicial scrutiny of the impugned order has to be considered and, therefore, this, in my opinion, again adds to relevant features in solving the problem in favour of holding that the impugned order cannot be an interlocutory order. 30. There is another tinge to this aspect. The existence of a dispute with the likelihood of breach of peace concerning the property is the core of this proceeding and if the situation is of emergency, then it becomes an aggrav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y affects the rights of the parties as also a particular and important aspect of the proceeding. It can also be said with justification that not only it affects such right or aspect, but in a sense it practically decides or adjudicates any such right or the fate of a particular aspect of the proceedings. Any of these categories squarely embrace the facts of the instant case. 32. It is also not of place to note that this aspect of the proceeding has its own peculiar feature in contrast to other. Thus, sub-clause (3) of Section 145 stipulates the mode of service of summons and the order. The same applies to sub-clause (6)(b). Some of the other clauses of Section 145 indicate that those are merely steps-in-aid in the matter of procedure for conducting the proceeding. Attachment and sealing of the property is obviously taken out of the sweep of such procedural aspect and becomes practically a substantive plank. In any event and by any yardstick and in the minimum, such an order would unmistakably and squarely fall in the category of an 'intermediate' order which is not a merely procedural one, but substantially affects the rights of the parties as also materially affects t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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