1976 Supreme(Raj) 103

Rajasthan High Court
M.L. Jain, J.
Malam Singh - Appellant
Versus
State of Rajasthan - Respondents
S.B. Criminal Misc. Application No. 747 of 1975
Decided On : September 17, 1976

Headnote:(a) Criminal P.C., Sec. 482— High Court has inherent Power to rectify injustice and abuse of process even in case of interlocutory orders —Scope of sec 482 and secs, 397 and 399 different—High Courts power under sec. 482 not merely reoisional.(b) Criminal P.C., secs. 146(1) and 145(5)—Magistrate not precluded from cancelling preliminary order or withdrawing attachment.(c) Criminal P.C., secs. 397(2) and 399(3)—Order of magistrate under secs. 146(1) or 145(5) though are in the nature of final order and open to revision.

       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 setion 397 the revisi onal jurisdiction is available in order 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 432 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 diffi-cult 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 corre-ctness, 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. (Para 20)

       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 Magi-trate to cancel the preliminary order under sub-section (5) of section 146 or to withdraw an attachment under the proviso to sub-section (1) to section 146 Cr. P.C. is taken away, it is not possible to devise an all pervasive or a sort of an arithmetic formula to determine the final or interlocutory nature of an order. It may be final for one purpose and interlocutory for another. 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 exparte or after hearing. The order of attachment under sub-section (1) of sec. 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 of section 14b and can fall through if the preliminary order itself is cancelled under section 145(5). That will also not make it interlocutory. 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 to take any further action. (Paras 23, 31 & 32)