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1977 Supreme(Ker) 230
Judges : P.JANAKI AMMA
LILLY FRANKLIN - Appellant
Versus
WILSON - Respondent
Case No : Crl. R. P. No. 205 of 1977
Decided On : 10/05/1977
Advocates Appeared :
T. V. Prabhakaran; Mary Dias; For Petitioner P. F. Thomas; A. Muhammadan; For 1st Respondent State Prosecutor; For 2nd Respondent
The court clarified the nature of interlocutory and final orders, and emphasized the requirements of S.146(1) regarding the attachment of property.
Headnote:
S.145 - Proceedings initiated by Sub-Divisional Magistrate under S.145 of the Code of Criminal Procedure - S.145, S.146 - The court discussed the maintainability of the revision petition before the Court of Sessions, the nature of interlocutory and final orders, and the requirements of S.146(1) regarding the attachment of property. The court concluded that the order of attachment was unsustainable due to the simultaneous exercise of jurisdiction under S.145(1) and S.146(1). The revision petition was dismissed with the observation that the Magistrate could consider a fresh order of attachment if satisfied with the existence of an emergency.
Fact of the Case:
The Sub-Divisional Magistrate initiated proceedings under S.145 of the Code of Criminal Procedure, issuing an order for the attachment of disputed properties. The 1st respondent filed a revision petition challenging the order, arguing that it was unsustainable in law and that a case of emergency was not made out.
Finding of the Court:
The court found that the order of attachment was unsustainable due to the simultaneous exercise of jurisdiction under S.145(1) and S.146(1). The revision petition was dismissed with the observation that the Magistrate could consider a fresh order of attachment if satisfied with the existence of an emergency.
Issues: The maintainability of the revision petition before the Court of Sessions, the nature of interlocutory and final orders, and the requirements of S.146(1) regarding the attachment of property.
Ratio Decidendi: The court determined that the order of attachment was unsustainable due to the simultaneous exercise of jurisdiction under S.145(1) and S.146(1). It was concluded that the Magistrate could consider a fresh order of attachment if satisfied with the existence of an emergency.
Final Decision: The revision petition was dismissed with the observation that the Magistrate could consider a fresh order of attachment if satisfied with the existence of an emergency.
1. On the motion of the petitioner the Sub-Divisional Magistrate, Fort Cochin initiated proceedings under S.145 of the Code of Criminal Procedure and on 17th June, 1977 issued the following order: "Whereas I am satisfied from the report of the Divisional Inspector of Police, Mattancherry dated 7 61977 duly counter signed by the Assistant Commissioner (Law and Order) Ernakulam that a dispute likely to cause a breach of the peace concerning 13.308 cents of landed properties comprised in Sy. No. 988/14-16 of Rameswaram Village of Cochin Taluk and the house bearing door No. XVI/1188, which is situated within the local limits of this court, I do hereby require you to attend my court or by pleader at 11 A. M. on 24-6-1977 and put in written statement of their respective claim, if any, in regard to the actual possession of the land and building under dispute.
I am satisfied that the matter is one of emergency, I hereby order that the subject of dispute will be attached and taken into the court custody until further orders. Village Officer, Rameswaram Village is appointed as Receiver for the disputed properties.
Given under my hand and seal of the court this the 17th day of June, 1977.
Sd/-Sub Divisional Magistrate."
2. The 1st respondent was served with a copy of the order. He filed Criminal Revision Petition 57 of 1977 before the Court of Session, Ernakulam. The 3rd Additional Sessions Judge overruled the objection that the revision petition was barred in view of S 397 (2) of the Code of Criminal Procedure. The learned judge held that a composite order invoking the powers under S.145 (1) is unsustainable in law. The court further held that a case of emergency was not made out on the tacts and circumstances of the case.
3. All the above grounds are challenged in this revision petition. I shall first deal with the maintainability of the revision petition before the Court of Sessions. S.397 (2) of the Code of Criminal Procedure states that the powers of revision under S.397 (1) shall not be exercised in relation to any interlocutory order pass d in any appeal, inquiry, trial or other proceeding. The contention put forward on behalf of the petitioner is that neither the preliminary order under S.145 (1) nor the order of attachment under S.146 (1) finally disposed of the proceedings before the Sub Divisional Magistrate and therefore the order dated 17th June, 1977 is an interlocutory order coming under S.397 (2) of the Code of Criminal Procedure.
4. There are innumerable cases dealing with the question when an order can be said to be final and when interlocutory. The question when an order could be said to be 'final order' for purposes of S.109 (a) of the Code of Criminal Procedure, 1898 came up before the Privy Council in Abdul Rahman v. Cassim & Sons (1933 P. C. 58). The Privy Council after referring to some earlier decisions observed:
"The finality must be a finality in relation to the suit. If, after the order, the suit is still a live suit in which rights of parties have still to be determined, no appeal lies against it under S.109 (a) of the Code".
5. The question came up before the Supreme Court in AIR. 1968 S. C 733 Mohanlal v. State of Gujarat. The relevant portion of the judgment is extracted below:
"The question as to whether a judgment or an order is final or not has been the subject matter of a number of decisions; yet no single general test for finality has so far been laid down. The reason probably is that a judgment or order may be final for one purpose and 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 seperately 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 a
