MUNNA SINGH @ SHIVAJI SINGH vs STATE OF U. P.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(All) 2791

[2011(9) ADJ 98 (FB)]
ALLAHABAD HIGH COURT
(Full Bench)
AMAR SARAN, A.P. SAHI AND SURENDRA SINGH, JJ.
MUNNA SINGH @ SHIVAJI SINGH AND OTHERS .....Rvisionist
Versus
STATE OF U.P. AND ANOTHER .....Respondents
(Criminal Revision Nos. 4414 of 2004, 1045 of 2002, 5236, 5419, 5447 of 2004, 5452 and 5720 of 2006, decided on 11th October, 2011)

Advocates:
R.C. Yadav for the Revisionist; G.A., B.N. Rai and N.K. Rai for the Respondents.

Headnote:(A) Criminal Procedure Code, 1973—Sections 145(1), 146(1) and 397(2)—Immovable property—Lawful possession—Attachment—Power of Authorities— Authorities empowered to take action for attachment and pass orders under Sections 145(1) and 146(1) of code—Such order affects right of parties—Whether that can be subject-matter of a revision under Section 397(2) of Code—Expression interlocutory order—Absence of interpretation in code—In view of ratio of decisions no straight jacket formula to determine—As to whether an order would be final or interlocutory—Meaning of words have to be understood in light of facts of each particular case—In relation to particular purpose for which word is required to be interpreted—In view Ranbir Singh Case (2002(2) ACr.R 1457 SC) upholding order of High Court—In view of Apex Court where parties already entered into a litigation before Civil Court—Then proceedings under Sections 145 and 146 of Cr.P.C. should be avoided—It is an order of moment which has effect on right of party in possession—Cannot therefore be said to be mere interlocutory order—So as to bar revisional jurisdiction of High Court—Invoking of emergent powers under Section 146(1) Cr.P.C. is dependant on satisfaction of Magistrate—Emergency power execised when none of parties are in possession—Or Magistrate at stage unable to decide as to which of parties was in possession—Then order attachment can be resorted—Order which do not fall within exact nature of an interlocutory order—Cannot be subjected to revision in larger public interest—Where rights of parties affected that is not an interlocutory order—Order of attachment is not an interlocutory order—However dependents upon facts of each particular case—Held, orders passed under Sections 145(1) and 146(1) of code are not in every circumstance, order simplicitor—Therefore, a revision would be maintainable—Depending on facts involved each case. [Paras 2, 13, 16, 31 and 37]
       (B) Words and Phrases—Term “Final order”—Meaning of—Means a decision finally affecting rights of the contending parties—It is an issue which goes to foundation of a trial—Can be never questioned—If it has been allowed to stand. [Para 25]
       (C) Words and Phrases—Word “Final”—Connotation—It means which comes at end. [Paras 26]
       (D) Words and Phrases—Word “Interlocutory order”—Definition of—Is an order made pending cause and before a final hearing is concluded on merits—Such an order is made to secure some end and purpose necessary and essential to progress of litigation—Generally collateral to issues formed by pleadings—Not connected with final judgment. [Paras 27]
       (E) Words and Phrases—Word “Intermedium” Meaning of—It means “between” or in “middle”. [Paras 29]
       (F) Words and Phrases—Word “Interlocutory and Intermediary”—Distinction between—Former does not bring about any consequence of moment—And is an aid in performance of the final Act—It does not affect any existing rights finally—Or to disadvantage of either extremes—Where as an intermediate order can touch upon rights of parties—Or to be an order of moment—So as to affect any of rival parties by its operation. [Paras 30]

JUDGMENT

Hon’ble A.P. Sahi, J.—Chronic disputes relating to immovable property involving claims to lawful possession, founded on complicated facts seeking legal review, often give rise to an apprehension of breach of peace that leads to initiation of steps for maintaining law and order, and preventing unwarranted situations, calling upon the authorities empowered under the Criminal Procedure Code to take action for attachment and pass orders under the provisions of Sections 145(1) and 146(1) of the Code. Such orders that may affect the rights of the parties, whether can be subject matter of a revision under sub-section (2) of Section 397 of the Code, is the main issue of reference before this Full Bench.

2. To be precise, it would be appropriate to gainfully reproduce the issue framed by the learned Single Judge after having noted the decisions relied upon by either of the parties which is as follows :

“Whether the orders passed by the Magistrate under Sections 145(1) and 146(1) of the Code are interlocutory orders simplicitor and no revision petition under Section 397 or 403 of the Code or petition under Section 482 of the Code is maintainable against the same.”

3. The learned Single Judge was of the opinion that cases in which such proceedings are drawn have different facts and different implications. It has been further indicated that denial of the revisional jurisdiction to a litigant would be unjustified and for that the learned Single Judge has relied on his own judgment in the case of Gulab Chand v. State of U.P. and another, 2004 (48) ACC 579. While proceeding to make the reference the learned Single Judge however expressed his opinion that the bar of sub-section (2) of Section 397 of the Code would not apply uniformly and for that the opinions expressed in two Division Benches of this Court in the case of Indra Deo Pandey v. Smt. Bhagwati Devi, 1981 (18) ACC 316 and in the case of Sohan Lal Burman v. State of U.P., 1977 ACC 10 were considered, and then referring to the Supreme Court decisions given subsequently, particularly in the case of Ranbir Singh v. Dalbir Singh and others, 2002 (2) ACR 1457, referred this matter for a definite opinion on the law to be laid down by a larger bench. The learned Single Judge held that even orders of temporary nature may have far reaching consequences upon the rights or interest of the aggrieved party, and such a litigant cannot be rendered remediless as this was not the intention of the framers of the statute while creating the bar under sub-section (2) of Section 397.

4. Sri R.C. Yadav while advancing his submissions in the leading case of Munna Singh (supra) has urged that a Civil Suit No. 111 of 1980, in which the respondent No. 2 Guru Ram Vishwakarma Madhukar is the plaintiff is still pending, and a status quo interim order is operating as such there was no occasion for the Magistrate to have passed the orders impugned herein. The submission is that the revision against preliminary orders passed under Section 145(1) Cr.P.C. and 146(1) Cr.P.C. are amenable to the revisional jurisdiction under the Code as they touch upon the rights of the parties and are therefore not mere interlocutory orders. Reliance has been placed on the judgments that have been referred to by the learned Single Judge in the referring order as follows :

1. Madhu Limaye v. State of Maharashtra, 1978(15) ACC 183 SC.

2. V.C. Shukla v. State, AIR 1980 SC 962.

3. Ram Sumer Mahant Puri v. State of U.P., 1985 ACC 45 SC.

4. Mahant Ram Saran Das v. Harish Mohan and another, 2001(1) JIC 381 SC.

5. Ranbir Singh v. Dalbir Singh and others, 2002 (2) ACr.R 1457 SC.

6. Ram Lachchan and others v. State of U.P. and another, 2000(1) ACr.R 514.

7. Gulab Chand v. State of U.P. and another, 2004(48) ACC 579.

8. Laxmi Kant Dubey v. Smt. Jamuni and others, 1999 (39) ACC 649.

5. Sri B.N. Rai on behalf of the respondent No. 2 submits that the revisionist herein Munna Singh, was not a party to the civil suit, and therefore there was no option but

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2011 Supreme(All) 2791

Cases Referred (12)