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1980 Supreme(MP) 328
High Court of Madhya Pradesh
Chandra Pal Singh, J.
Ashfaque Mohd.
Vs.
Saida Qureshi
Cr. Revn. No. 335 of 1979
Decided on : 6-10-1980
M.A. Khan for applicant;
D.D. Vyas for non-applicant
Headnote:(1) Criminal P.C., 1973 - Ss. 126 (2) and 397 (2) - nature of an order under S. 126 (2) - is interlocutory - no revision lies against such order.
The order of the Magistrate, pursuant to an application before him by the husband (petitioner) under the proviso to clause (2) of section 126 Criminal Procedure Code, restraining the proceedings for the realization of the maintenance allowance by the wife was not a final order. It was no doubt an important order and vital for the wife (respondent); nonetheless it was not an order finally disposing of their rights. It had merely suspended the realization of the amount. The learned Sessions Judge, therefore, was clearly in error in having construed that order as a final order.
Section 397(2) Criminal Procedure Code clearly bars the exercising of revisional powers against an interlocutory order. The order of the Magistrate suspending the realization of the amount of the maintenance allowance from the husband till he finally disposed of his application for setting aside the exparte order against him was an interlocutory order. [Para 7 & 9]
(2) Interlocutory order - what is - meaning to be judged in relation to a particular purpose.
The question whether an order is interlocutory or final has not yet been finally judicially decided. There is of course no statutory definition of an interlocutory order in the Code. Ordinarily speaking an interlocutory order is one, which is not final, although in relation to a particular stage of the proceeding that order may be final and not in relation to other stages of the proceeding. The meaning of the word 'Interlocutory' in contra-distinction with 'final' has to be judged in relation to a particular purpose. AIR 1977 SC 2185, 1978 MPLJ 24 (SC) followed. [para 5]
(3) Order - finality when may be attached to an order - decision putting an end to suit - order is final.
To constitute a final order, it is not sufficient merely to decide an important and even a vital issue in the case. If the decision o. an issue puts an end to the suit, the order will undoubtedly be a final one, but if the suit is still left alive and has got to be tried in the ordinary way, no finality could attach to the order". AIR 1970 SC 1168 followed. [Para 6]
(4) Criminal P.C., 1973 - S. 482 - inherent powers of High Court - scope of.
Section 142 do not - create any new power, they only declare whatever powers the High Court already had. The scope of those powers is restricted in 'the sense; that the orders that may be made under section 482 are: (i) to give effect to any order passed under the Code, (ii) to prevent abuse of the process of any Court, or (iii) otherwise secure the ends of justice. [Para 8]
(5) Legal Maxims - Quando lex aliquid alicui concedit, concedere videtur id quo res ipra esse non-potest - means when law gives anything to anyone it gives all those things' without which thing given itself would be unavailable.
(6) 'Criminal P.C., 1973 - Chapter 9 - nature of proceedings under - they are quasi -criminal or quasi - civil.
The proceedings contained in Chapter 9 are not strictly criminal and the remedy available is only a summary one. They are also not strictly civil. They could be described as quasi criminal or quasi-civil, quasi-criminal because they appear in the Criminal Procedure Code and quasi-civil because of the procedure which though, compressed would be appropriate in a suit claiming maintenance. [Para 11]
(7) Practice - matter of procedure - no one has a rested right. [Para 12]
(8) Criminal P.C., 1973 - S.125 – Order for maintenance - may be passed exparte. 1972 Cr. L.J. 93 relied on. [Para 12]
(9) Summons - case under S. 125 Cr. P.C., - summons may be sent by registered post, 1973 Cr. L.J. 401 relied on. [Para 12]
Chandra Pal Singh, J.
1. By this petition, Ashfaq Mohammad seeks interference with the order of the Sessions Judge, Rajgarh of 26-9-1979 quashing the order of the Chief Judicial Magistrate of 11.7.1979 and the proceedings in Misc. Criminal Case No. 9 of 1979 initiated' by the petitioner under section 126 (2) of the Criminal Procedure Code for setting aside the exparte order of maintenance passed against him and in favour of respondent No. 1 Saida Qureshi.
2. The petitioner and respondent No. 1 are husband and wife. The wife moved an application under section 125 Criminal Procedure Code against the husband, for being maintained, successfully before the Chief Judicial Magistrate; Rajgarh, who in the absence of the petitioner finding that he inspite of the service of the summons had refused to attend the Court, granted her maintenance at the rate of Rs.200/- per month. The husband preferred Criminal Revision No. 19 of 1979 before the Sessions Judge, Rajgarh on 2.4.1979 for setting aside the exparte order against him. The learned Sessions Judge by his order of 25-5-1979 dismissed it in limine. In the meantime on 13-4-1979 the husband had also preferred an application under section 125 (2) Criminal Procedure Code for setting aside the order passed by the Chief Judicial Magistrate on 3-3-1979 and inter alia prayed for the staying of the operation of the order granting maintenance to his wife. The wife opposed this application on the grounds that the exparte order passed against the petitioner was proper and that there was no power for staying the operation of the order passed earlier. The learned Chief Judicial Magistrate by his order of 11-7-1979 staying the operation of the order for realizing the amount of maintenance from the husband, adjourned the case for further proceeding on 2-8-1979.
3 Dissatisfied the wife preferred Criminal Revision No. 37 of 1979 before the learned Sessions Judge, Rajgarh, who by his order, which is being challenged finding that the order passed by the Magistrate staying the realization of the maintenance allowance was not an interlocutory order and that the matter regarding the granting of maintenance allowanance had already stood decided, quashed the order of the Magistrate of 11.7.1979, as also the entire proceedings in Misc. Criminal Case No. 9 of 1979.
4. The contention by the learned counsel for the petitioner-husband is that the order of the Magistrate staying the realization of the maintenance allowance was merely an interlocutory order and hence the learned Sessions Judge could not have entertained a revision petition because of the bar contained in section 397 (2) Criminal Procedure Code.
5. The question whether an order is interlocutory or final has not yet been finally judicially decided. There is of course no statutory definition of an interlocutory order in the Code. Ordinarily speaking an interlocutory order is one, which is not final, although in relation to a particular it age of the proceeding that order may be final and not in relation to other stages of the proceeding. The meaning of the word 'interlocutory' in contradistinction with 'final' has to be judged in relation to a particular purpose. In Amarnath and others Vs. State of Haryana (AIR 1977 SC 2185), their lordships of the Supreme Court while interpreting 'interlocutory, order' have laid down as follows:-
"The main question which falls for determination in this appeal is as to what is the connotation of the term 'interlocutory order' as appearing in sub-section (2) of S. 397 which bars any revision of such an order by the High Court. The term 'interlocutory order' is a term of well-know legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary interlocutory has been defined as an order other than final decision. Decided cases have laid down that interlocuto
