# Revisionist v. State of U.P. and another Opp. Parties

- **Citation:** (2011) 3 ILRA 1185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-10-11
- **Case number:** Criminal Revision No. 4414 of 2004
- **Bench:** Amar Saran, A.P. Sahi, Surendra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionist-v-state-of-u-p-and-another-opp-parties-42062
- **Pages:** 15

## Headnote

(A) Code of Criminal Proedure-Section
397 (1)-Criminal revision-against the
order passed under section 145(1) and
146(1)-whether
maintainable
?-held-
"Yes".

Held: Para: 41

Our answer to the question referred
would be therefore in the negative, and
we hold that orders passed under
Sections 145(1) and 146(1) of the Code
are not in every circumstance, orders
simplicitor, and therefore a revision
would be maintainable in the light of the
observations made in this judgment
depending on the facts involved in each
case.

(B)
Criminal
Revision-final
and
interlocutory order-nature defined-and
explained distinctions between the twofinal order-means-nothing more to be
decide
by
Trail
Court-interlocutory
means-which does not decide the rights
and liabilities of parties-a pure interim
measure.

Held: Para 33

The
distinction
between
the
two,
interlocutory and intermediary would be
that the former does not bring about any
consequence of moment and is an aid in
the performance of the final Act. It does
not affect any existing rights finally or to
the disadvantage of either extremes. An
intermediate order can touch upon the
rights of the parties or be an order of
moment so as to affect any of the rival
parties by its operation. Such an order
affecting the rights of a person or
tending to militate against either of the
parties even at the subordinate stage
can be termed as an intermediate or an
intermediary order.
Case law discussed:
2004(48) ACC 579; 1981 (18) ACC 316; 1977
ACC 10; 2002 (2) Allahabad Criminal Ruling
1457; 1978(15)ACC 183 SC; AIR 1980 SC 962;
1985 ACC 45 SC; 2001 (1) JIC 381 SC;
2002(2) ACr.R 1457; 2001 (1) ACr.R 514;
2004 (48) ACC 579; 1999 (39) ACC 649; 1969
Crl.LJ Page 13 (Vol. 75C.N. 4) (SC); 1980 SCC
(Cri) Page 9; 1980 SCC Page 116; A.I.R. 2000
SC 1504; 2001 (1) JIC 381 (S.C.); 1985 A.W.C.
128 S.C.; 2001 All JIC 95 S.C.; 1999 (39) ACC
678; 2004 (48) ACC 579; 1978 (15) ACC 183
(S.C.); 2002 Alld. JIC 378; 2000 (40) ACC 738;
AIR 1980 SC 962; AIR 1978 Supreme Court
47; AIR 1977 Supreme Court 403; AIR 1968
Supreme Court 733; AIR 1977 Supreme Court
2185; 1991 Cri.LJ. 1765; 1985 (1) SCC 427;
(1988) 4 SCC 452; (2000) 4 SCC 440; 1990
Cr.L.J. 1541; AIR 1980 Supreme Court 962;
2004 (48) ACC 579; 1999 (39) ACC 649; 1979
(4) SCC 665; 1990 Cr.L.J. 961
1186 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

## Text

_Characters 0–39,949 of 48,423. This is a partial read: ask again with offset=39949 for what follows._

3 All] Munna Singh @ Shivaji Singh & others V. State of U.P. and another
1185

10. The impugned order dated
6.7.2011 is set-aside.

11. Learned Magistrate is directed
to take a fresh decision on the final
report in the light of a Division Bench
decision of this Court in case of
Pakhando (supra).
---------

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.10.2011

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE A.P. SAHI, J.
THE HON'BLE SURENDRA SINGH, J.

Criminal Revision No. 4414 of 2004

Munna Singh @ Shivaji Singh & others

 ...Revisionist
Versus
State of U.P. and another ...Opp. Parties

Counsel for the Revisionist:
Sri R.C.Yadav

Counsel for the Opposite Parties:
Sri B.N. Rai
Sri S.B. Singh
Sri N.K. Rai
Govt. Advocate

(A) Code of Criminal Proedure-Section
397 (1)-Criminal revision-against the
order passed under section 145(1) and
146(1)-whether
maintainable
?-held-
"Yes".

Held: Para: 41

Our answer to the question referred
would be therefore in the negative, and
we hold that orders passed under
Sections 145(1) and 146(1) of the Code
are not in every circumstance, orders
simplicitor, and therefore a revision
would be maintainable in the light of the
observations made in this judgment
depending on the facts involved in each
case.

(B)
Criminal
Revision-final
and
interlocutory order-nature defined-and
explained distinctions between the twofinal order-means-nothing more to be
decide
by
Trail
Court-interlocutory
means-which does not decide the rights
and liabilities of parties-a pure interim
measure.

Held: Para 33

The
distinction
between
the
two,
interlocutory and intermediary would be
that the former does not bring about any
consequence of moment and is an aid in
the performance of the final Act. It does
not affect any existing rights finally or to
the disadvantage of either extremes. An
intermediate order can touch upon the
rights of the parties or be an order of
moment so as to affect any of the rival
parties by its operation. Such an order
affecting the rights of a person or
tending to militate against either of the
parties even at the subordinate stage
can be termed as an intermediate or an
intermediary order.
Case law discussed:
2004(48) ACC 579; 1981 (18) ACC 316; 1977
ACC 10; 2002 (2) Allahabad Criminal Ruling
1457; 1978(15)ACC 183 SC; AIR 1980 SC 962;
1985 ACC 45 SC; 2001 (1) JIC 381 SC;
2002(2) ACr.R 1457; 2001 (1) ACr.R 514;
2004 (48) ACC 579; 1999 (39) ACC 649; 1969
Crl.LJ Page 13 (Vol. 75C.N. 4) (SC); 1980 SCC
(Cri) Page 9; 1980 SCC Page 116; A.I.R. 2000
SC 1504; 2001 (1) JIC 381 (S.C.); 1985 A.W.C.
128 S.C.; 2001 All JIC 95 S.C.; 1999 (39) ACC
678; 2004 (48) ACC 579; 1978 (15) ACC 183
(S.C.); 2002 Alld. JIC 378; 2000 (40) ACC 738;
AIR 1980 SC 962; AIR 1978 Supreme Court
47; AIR 1977 Supreme Court 403; AIR 1968
Supreme Court 733; AIR 1977 Supreme Court
2185; 1991 Cri.LJ. 1765; 1985 (1) SCC 427;
(1988) 4 SCC 452; (2000) 4 SCC 440; 1990
Cr.L.J. 1541; AIR 1980 Supreme Court 962;
2004 (48) ACC 579; 1999 (39) ACC 649; 1979
(4) SCC 665; 1990 Cr.L.J. 961
1186 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(Delivered by Hon'ble A.P. Sahi,J.)

1. 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 Section 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 Vs.
State of U.P. & another, reported in 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 Vs. Smt. Bhagwati Devi,
1981 (18) ACC 316 and in the case of
Sohan Lal Burman Vs. 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 Vs. Dalbir Singh and
others, 2002 (2) Allahabad Criminal
Ruling 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
3 All] Munna Singh @ Shivaji Singh & others V. State of U.P. and another
1187
learned Single Judge in the referring order
as follows:-

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

2 .AIR 1980 SC 962 V.C. Shukla Vs.
State.

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

4. 2001(1) JIC 381 SC Mahant Ram
Saran Das Vs. Harish Mohan & another.

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

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

7. 2004(48) ACC 579 Gulab Chand
Vs. State of U.P. & another.

8. 1999 (39) ACC 649 Laxmi Kant
Dubey Vs. Smt. Jamuni & others.

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 to proceed under
Sections 145 and 146 Cr.P.C. against him.
The action does not give any rise to a cause
so as to make the orders revisable in the
present case. Sri Rai contends that in the
event of emergency, such powers can be
invoked and along with his written
submissions he has relied on the following
decisions to substantiate his arguments:-

1 1969 Crl.LJ Page 13 (Vol. 75 C.N.
4) (SC) R.H. Bhutani Vs. Miss Mani J.
Desai and others.

2. 1980 SCC (Cri) Page 9 Mathura
Lal Vs. Bhanwar Lal & another.

3. 1980 SCC Page 116 Rajpati Vs.
Bachan and another."

6. Sri V. Singh has advanced his
submissions in Criminal Revision No.
1045 of 2002 (Smt. Murti Devi and others
Vs. State of U.P. & others), contending
that where an order under Sub Section (1)
of Section 145 which involves the
jurisdiction of the Magistrate to proceed or
terminate
the
proceedings,
may
be
revisable. An order under 146(1) Cr.P.C.
cannot be according to him, subjected to a
revision under Sub Section (2) of Section
397 Cr.P.C. In this case the learned
Additional District Judge has set aside the
order passed under Section 145 read with
Section 146(1) on the ground that a civil
suit in relation to the disputed property was
pending for the past 10 years in which a
status quo order had been passed on 23rd
March, 1990 and therefore the Magistrate
erroneously
assumed
jurisdiction
to
proceed in the matter. Sri Singh contends
that where there is an apprehension of
immediate breach of peace then an order
passed under Sub Section (1) of Section
146 would be an interlocutory order and
not an order of the nature as urged on
behalf of the respondents. He therefore
contends referring to almost the same
decisions as relied on by the other counsel
and referred to hereinabove, that an order
passed under Section 145(1) Cr.P.C. would
be revisable but not an order under Section
146(1) of the Code as it is only for a
temporary purpose.

7. Sri S.B. Singh who has appeared
for the opposite parties No. 2 and 3 Ram
Lakhan and Mukut Dhari has also
furnished
his
written
submissions
contending that parallel proceedings under
1188 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the Criminal Procedure Code have to be
avoided and multiplicity of litigation is
against public interest. Therefore keeping
in view the decisions cited at the bar, the
impugned orders under Sections 145(1)
and 146(1) of the Code have to be treated
as intermediary orders and not mere
interlocutory orders, hence revisable under
Section 397(1) of the Criminal Procedure
Code. Sri S.B. Singh has relied on the
following decisions in support of his
submissions:-

1 .A.I.R. 2000 SC 1504 (Amresh
Tiwari Vs. Lalta Pd. Dubey & Ors.)

2. 2001 (1) JIC 381 (S.C.) (Mahant
Ram Saran Das Vs. Harish Mohan and
others)

3. 1985 A.W.C. 128 S.C. (Ram Sumer
Puri Mahant Vs. State and others)

4 .2001 All JIC 95 S.C. (Laphinoris
Shang Pling and others Vs. Hambay
Shullai and another)

5. 1999 (39) ACC 649 (Lakshmi Kant
Dubey Vs. Smt. Jamuni and others)

6. 1999 (39) ACC 678 (Vishwanath
and another Vs. Addl. Session Judge, Basti
and others)

7. 2004 (48) ACC 579 (Gulab Chand
Vs. State of U.P. and others)

8. 1978 (15) ACC 183 (S.C.) (Madhu
Limaye Vs. State of Maharashtra)

9. 2002 Alld. JIC 378 (Ranbir Singh
Vs. Dalbir Singh and others)

10.
2000(40)
ACC
738
(Ram
Lachchan and others Vs. State of U.P. and
others)

11. AIR 1980 SC 962 (V.C. Shukla Vs.
State of U.P. and others).

8. Learned A.G.A. on behalf of the
State submits that a revision having been
specifically barred against a interlocutory
order by the legislature under Section 397
(1) Cr.P.C., this court while answering the
reference will have to clarify the law in
order to enable the Magistrates and the
Revising Authorities to decipher the cases
where such a bar would not operate. The
learned A.G.A. has also invited the
attention of the Court to the decisions and
the relevant paragraphs that have already
been cited on behalf of the learned counsel
for the either side.

9. Having heard learned counsel for
the parties, it would be appropriate to
reproduce Sections 145, 146 and Section
397 of the Code of Criminal Procedure to
understand the controversy:-

"145.Procedure
where
dispute
concerning land or water is likely to
cause breach of peace.-

(1)
Whenever
an
Executive
Magistrate is satisfied from a report of a
police or upon other information that a
dispute likely to cause a breach of the
peace exists concerning any land or water
or the boundaries thereof, within his local
jurisdiction, he shall make an order in
writing, stating the grounds of his being so
satisfied,
and
requiring
the
parties
concerned in such dispute to attend his
Court in person or by pleader on a
specified date and time, and to put in
written statements of their respective
3 All] Munna Singh @ Shivaji Singh & others V. State of U.P. and another
1189
claims as respects the fact of actual
possession of the subject of dispute.

(2) For the purposes of this section,
the expression "land or water" includes
buildings, markets, fisheries, crops or
other produce of land, and the rents or
profits of any such property.

(3) A copy of the order shall be served
in the manner provided by this Code for
the service of a summons upon such person
or persons as the Magistrate may direct,
and at least one copy shall be published by
being affixed to some conspicuous place at
or near the subject of dispute.

(4) The Magistrate shall then, without
reference to the merits or the claims of any
of the parties to a right to possess the
subject of dispute, peruse the statements so
put in, hear the parties, receive all such
evidence as may be produced by them, take
such further evidence, if any, as he thinks
necessary, and, if possible, decide whether
any and which of the parties was, at the
date of the order made by him under subsection (1), in possession of the subject of
dispute:

Provided that if it appears to the
Magistrate that any party has been forcibly
and wrongfully dispossessed within two
months next before the date on which the
report of a police officer or other
information
was
received
by
the
Magistrate, or after that date and before
the date of his order under sub-section (1),
he may treat the party so dispossessed as if
that party had been in possession on the
date of his order under sub-section (1).

(5) Nothing in this section shall
preclude any party so required to attend,
or any other person interested, from
showing that no such dispute as aforesaid
exists or has existed; and in such case the
Magistrate shall cancel his said order, and
all further proceedings thereon shall be
stayed, but, subject to such cancellation,
the order of the Magistrate under subsection (1) shall be final.

(6) (a) If the Magistrate decides that
one of the parties was, or should under the
proviso to sub-section (4) be treated as
being, in such possession of the said
subject, he shall issue an order declaring
such party to be entitled to possession
thereof until evicted therefrom in due
course
of
law,
and
forbidding
all
disturbance of such possession until such
eviction; and when he proceeds under the
proviso to sub-section (4), may restore to
possession
the
party
forcibly
and
wrongfully dispossessed.

(b) The order made under this subsection shall be served and published in
the manner laid down in sub-section (3).

(7) When any party to any such
proceeding dies, the Magistrate may cause
the legal representative of the deceased
party to be made a party to the proceeding
and shall thereupon continue the inquiry,
and if any question arises as to who the
legal representative of a deceased party
for the purposes of such proceeding is, all
persons claiming to be representatives of
the deceased party shall be made parties
thereto.

(8) If the Magistrate is of opinion that
any crop or other produce of the property,
the subject of dispute in a proceeding
under this section pending before him, is
subject to speedy and natural decay, he
may make an order for the proper custody
or sale of such property, and, upon the
1190 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
completion of the inquiry, shall make such
order for the disposal of such property, or
the sale-proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he thinks
fit, at any stage of the proceedings under
this section, on the application of either
party, issue a summons to any witness
directing him to attend or to produce any
document or thing.

(10) Nothing in this section shall be
deemed to be in derogation of the powers
of the Magistrate to proceed under section
107.

146.Power to attach subject of
dispute and to appoint receiver.-

(1) If the Magistrate at any time after
making the order under sub-section (1) of
section 145 considers the case to be one of
emergency, or if he decides that none of
the parties was then in such possession as
is referred to in section 145, or if he is
unable to satisfy himself as to which of
them was then in such possession of the
subject of dispute, he may attach the
subject of dispute until a competent Court
has determined the rights of the parties
thereto with regard to the person entitled
to the possession thereof:

Provided that such Magistrate may
withdraw the attachment at any time if he
is satisfied that there is no longer any
likelihood of breach of the peace with
regard to the subject of dispute.

(2) When the Magistrate attaches the
subject of dispute, he may, if no receiver in
relation to such subject of dispute has been
appointed by any Civil Court, make such
arrangements as he considers proper for
looking after the property or if he thinks fit,
appoint a receiver thereof, who shall have,
subject to the control of the Magistrate, all
the powers of a receiver appointed under
the Code of Civil Procedure, 1908:

Provided that in the event of a
receiver being subsequently appointed in
relation to the subject of dispute by any
Civil Court, the Magistrate-

(a) shall order the receiver appointed
by him to hand over the possession of the
subject of dispute to the receiver appointed
by the Civil Court and shall thereafter
discharge the receiver appointed by him;

(b) may make such other incidental or
consequential orders as may be just."

397. Calling for records to exercise
powers of revision:-(1)The High Court or
any Sessions Judge may call for and
examine the record of any proceeding
before any inferior Criminal Court situate
within its or his local jurisdiction for the
purpose of satisfying itself or himself; to
the correctness, legality or propriety of any
finding, sentence or order, recorded or
passed, and as to the regularity of any
proceedings of such inferior Court, and
may, when calling, for such record, direct
that the execution of any sentence or order
be suspended, and if the accused is in
confinement that he be released on bail or
on his own bond pending the examination
of the record.

Explanation:-
All
Magistrates,
whether Executive or Judicial and whether
exercising
original
or
appellate
jurisdiction shall be deemed to be inferior
to the Sessions Judge for the purposes of
this sub-section and of Section 398.
3 All] Munna Singh @ Shivaji Singh & others V. State of U.P. and another
1191

(2) The powers of revision conferred
by sub-section (1) shall not be exercised
in relation to any interlocutory order
passed in any appeal, inquiry, trial or
other proceeding.

(3) If an application under this
section has been made by any person
either to the High Court or to the Sessions
Judge, no further application by the same
person shall be entertained by the other of
them."

10. The legal wrangle began when
different courts gave their interpretations in
the absence of any precise definition of the
words "interlocutory order" occurring in
the Code. The same not having been either
illustratively or exhaustively defined came
to be given different shades on the facts of
a case in which the said words were sought
to be interpreted. We may gainfully refer
to the locus classicus and magnum opus on
this subject rendered by the apex court in
the celebrated decision of Madhu Limaye
Vs. State of Maharashtra, reported in
AIR 1978 Supreme Court 47. This case
has been referred to and followed as an
illustration which in turn had relied on two
earlier decisions in the case of Smt.
Parmeshwari Devi Vs. The State &
another, AIR 1977 Supreme Court 403
and the decision in the case of Mohan Lal
Magan Lal Thacker Vs. State of Gujarat,
AIR 1968 Supreme Court 733. The said
decision is an authority for having coined
the terminology of an intermediate order or
intermediary order which can be subject to
a revision under Sub Section (1) of Section
397 of the Code. While dealing with the
issue
of
distinction
between
an
interlocutory order and a final order their
Lordships noticed the definition contained
in the third Edition of Halsbury's Laws in
England as follows in Paragraph 12 of the
said judgment:-

"Para 12. Ordinarily and generally
the expression 'interlocutory order' has
been understood and taken to mean as a
converse of the term 'final order.' In
volume 22 of the third edition of
Halsbury's Laws of England at Page 742,
however, it has been stated in para 1606:-

"..........................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 must therefore
be considered separately in relation to the
particular purpose for which it is
required."

In para 1607 it is said:

"In general a judgment or order
which determines the principal matter in
question is termed 'final'."

In para 1608 at pages 744 and 745
we find the words:

"An order which does not deal with
the final rights of the parties, but either (1)
is made before judgment and gives no final
decision on the matter in dispute but is
merely on a matter of procedure or (2) is
made after judgment, and merely directs
how the declarations of right already given
in the final judgment are to be worked out
is termed "interlocutory." An interlocutory
order, through not conclusive of the main
dispute, may be conclusive as to the
subordinate matter with which it deals."

11. An illustration that would be
worth referring is in the case of Amar
Nath and others Vs. State of Haryana and
1192 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
others, reported in AIR 1977 Supreme
Court 2185 where the choice of the
legislature to introduce the bar was traced
out and explained in paragraph 6 of the
said judgment as follows:-

6. ....... 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 subsection (2) of Section 397 which bars any
revision of such an order by the High
Court. The term "interlocutory Order" is a
term of well-known 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 interlocutory orders to be appealable
must be those which decide the rights and
liabilities of the parties concerning a
particular aspect. It seems to us that the
term "interlocutory order" in Section
397(2) of the 1973 Code has been used in
a restricted sense and not in any broad or
artistic sense. It merely denotes orders of
a purely interim or temporary nature
which do not decide or touch the
important rights or the liabilities of the
parties. Any order which substantially
affects the rights of the accused, or
decides certain rights of the parties
cannot be said to be an interlocutory
order so as to bar a revision to the High
Court against that order, because that
would be against the very object which
formed the basis for insertion of this
particular provision in Section 397 of the
1973 Code. Thus, for instance, orders
summoning witnesses, adjourning cases,
passing orders for bail, calling for reports
and such other steps in aid of the pending
proceeding, may no doubt amount to
interlocutory orders against which no
revision would lie under Section 397 (2) of
the 1973 Code. But orders which are
matters of moment and which affect or
adjudicate the rights of the accused or a
particular aspect of the trial cannot be
said to be interlocutory order so as to be
outside the purview of the revisional
jurisdiction of the High Court."

12. In the case of Smt. Parmeshwari
Devi (supra) the law laid down in Mohan
Lal's case (supra) was explained as
follows:-

"7. The Code does not define an
interlocutory order, but it obviously is an
intermediate order, made during the
preliminary stages of an enquiry or trial.
The purpose of sub-section (2) of Section
397 is to keep such an order outside the
purview of the power of revision so that the
enquiry or trial may proceed without
delay. This is not likely to prejudice the
aggrieved party for it can always
challenge it in due course if the final order
goes against it. But it does not follow that
if the order is directed against a person
who is not a party to the enquiry or trial,
and he will have no opportunity to
challenge it after a final order is made
affecting the parties concerned, he cannot
apply for its revision even if it is directed
against him and adversely affects his
rights.

8. A somewhat similar argument
came up for consideration before this
Court in Mohan Lal Magan Lal Thacker v.
State of Gujarat (1968) 2 SCR 685 = (AIR
1968 SC 733). The controversy there
centred round the meaning of Article
134(1) (c) of the Constitution and the
3 All] Munna Singh @ Shivaji Singh & others V. State of U.P. and another
1193
Court examined the meaning of the words
"final" and "interlocutory." It was held
that the meaning "had to be considered
separately in relation to the particular
purpose for which it is required" to be
interpreted. No single test can be applied
to determine whether an order is final or
interlocutory. Then it has been held by this
Court in that case as follows-

"An interlocutory order, though not
conclusive of the main dispute may be
conclusive as to the subordinate matter
with which it deals." It may thus be
conclusive with reference to the stage at
which it is made, and it may also be
conclusive as to a person, who is not a
party to the enquiry or trial, against whom
it is directed.........."

13. Thus, in view of the aforesaid
decisions, it is clear that no exclusive or
exhaustive singular test can be framed in a
straight jacket formula to determine as to
whether an order would be final or
interlocutory. The meaning of the words
have to be understood in the light of the
facts of each particular case in relation to
the particular purpose for which the word
is required to be interpreted. This in our
opinion is reflected in the decision in the
case of Ranbir Singh (supra) where while
upholding the order of the High Court it
was clearly indicated that where the parties
have already entered into a litigation
before
the
Civil
Court
then
such
proceedings should be avoided.

14. Before proceeding to express our
opinion on the connotation of the words
interlocutory orders, final orders and
intermediary
orders,
it
would
be
appropriate to refer to the decisions of this
Court which have impelled the learned
single Judge to refer the matter for a
definite pronouncement. The Division
Bench in the case of Sohan Lal Burman
(supra) was held to be no longer good law
by the Division Bench in the case of Indra
Deo Pandey (supra). The case of Indra Deo
Pandey went on to hold that an order
passed under Sub Section (1) of Section
146 for attachment during the pendency of
the proceedings of Section 145 even if
improper, is an error of purely temporary
and intermediate in nature which does not
purport to decide any legal rights of the
parties. It was further held that such an
order is passed for the purpose of effective
final adjudication of the proceedings and it
does not amount to any disposal of any
part of the controversy between the parties.

15. This aspect of the matter came to
be considered in a case by a full bench of
the Jammu and Kashmir High Court
pertaining to an order passed under Section
145(1) of the Code read with the
amendments brought about in the criminal
procedure code as applicable in the State of
Jammu & Kashmir under the Amending
Act No. 37 of 1978 in the case of Brij Lal
Chakoo Vs. Abdul Ahmad, 1980 Cr.L.J.
Pg. 89. The Full Bench was called upon to
resolve the issue about the maintainability
of a revision in relation to an interlocutory
order of a similar nature as involved
herein.

16. The decision went on to hold that
the assumption of jurisdiction by the
Magistrate under Section 145 Cr.P.C. and
the making of a preliminary order cannot
be termed as a mere interlocutory order,
inasmuch as, the very foundation upon
which the Magistrate proceeds is based on
a satisfaction that there is a dispute relating
to possession of immovable property and
there is an apprehension of breach of
peace. Whether the Magistrate had the
1194 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
jurisdiction to proceed or not was held to
be not a mere interlocutory order and
therefore revisable if the ingredients of
jurisdiction are missing. The decision
further went on to hold that the attachment
of the property under Sub Section (4) of
Section 145 in such a situation would also
be without jurisdiction as it affects the
possessory right of a party. It was further
held that even though the order of
attachment is made at an interim stage of
the proceedings nevertheless "it is an
order of moment which has the effect on
the right of the party in possession and
cannot therefore be said to be a mere
interlocutory order so as to bar the
revisional jurisdiction of the high
court".

17. The Court further went on to hold
that there are cases where Magistrates
invoke such provisions arbitrarily in a
routine manner which has the effect of
dispossessing
a
person
already
in
possession. In such a situation the
aggrieved party can always demonstrate
before the revisional court that no such
emergent circumstance existed justifying
the invoking of such powers or that the
Magistrate had no jurisdiction to make
such an order regardless of the procedure
laid down under Section 145 Cr.P.C.
Relying on the decision in the case of Smt.
Parmeshwari Devi (supra) in Paragraph 17
held as follows:-

Para 17. It is worthy to mention here
that the orders of the category as
mentioned above though not conclusive of
the
main
dispute
are,
undoubtedly,
conclusive as to the subordinate matter.
That such an order is amenable to the
revisional jurisdiction of the High Court
cannot be gainsaid."

18. This full bench decision has been
followed by a learned Single Judge of the
Gauhati High Court in the case of
Indrapuri Primary Co-operative Housing
Society Ltd. and another Vs. Sri Bhabani
Gogoi, reported in 1991 Cri.LJ. 1765.

19. To the contrary however a pure
order under Section 146(1) was held to be
an interlocutory order by the Full Bench of
the Punjab & Haryana High Court in the
case of Kartar Singh and others Vs. Smt.
Pritam Kaur and another, 1984 Cr.L.J.
248. The said decision however went on to
deal with the matter on the footing that the
issue revolved around the composite
provisions of Sections 145 and 146 Cr.P.C.
and
unequivocally
held
that
these
proceedings do not substantially call for
being subjected to a revision. In Paragraph
12 of the decision the Division Bench
judgment of this Court in the case of Indra
Deo Pandey (supra) was approved as
follows:-

"Para 12. Apart from the judgments
of this Court, the recent Division Bench
decision in Indra Deo Pandey Vs. Smt.
Bhagwati Devi, 1981 All LJ 687, renders a
complete answer to most of the contentions
raised on behalf of the petitioner. After an
exhaustive examination of the matter (with
which I entirely concur), it was held that
the earlier Division Bench view of the
same High Court in Sohan Lal Burman Vs.
State of U.P., 1977 Cri LJ 1322, was in
fact no longer good law after the
authoritative
pronouncement
in
Mathuralal's case (1980 Cri LJ 1) (SC)
(supra)."

20. Nonetheless, it is necessary to
refer to Paragraph 4 of the same Full
Bench judgment of Kartar Singh's case
(supra) where the Court has expressed its
3 All] Munna Singh @ Shivaji Singh & others V. State of U.P. and another
1195
difficulty in attempting a precise and
conclusive definition so as to draw a
distinction between an interlocutory order
and a final order or any other order falling
in between. Paragraph 4 of the said
judgment is gainfully reproduced herein
under:-

"Para 4. It is plain that the specific
question herein is but a limb of the larger
yet perennial controversy as to what
constitutes a final as against a merely
interlocutory order and the penumbral
area lying betwixt the two extremes. In
view of the mass of conflicting case law on
the point, it would appear that these two
terms are not capable of a precisely
exclusive definition for each and it would
be a vain attempt to define what seems to
be inherently undefinable. One cannot help
commenting that the erudite attempts to
confine each of the terms to a procrustean
bed of the precise legal definition is
reminiscent of the somewhat tautologist
definition of a circle as one, that is,
circular. Therefore, without launching into
a dissertation as to what are the precise
legal attributes of a final order as against
an interlocutory one and attempting to
draw a razor-sharp line betwixt the two, I
propose to confine myself to the limited
focal question - whether in the peculiar
context of Section 146 (1) of the Code, the
attachment of immovable property is
broadly interlocutory in nature and that
too for the specific purposes of S. 397 (2)
thereof."

21. However while proceeding to
answer the reference as noted above, the
Court went on to take into consideration
the provisions of Section 145 as well. But
while answering the reference the recital
contained in Paragraph 16 of the judgment
is as follows:-

"Para 16. To conclude, the answer to
the question posed at the very outset, is
rendered in the affirmative and it is held
that an order of attachment of an
immovable property under Section 146 (1)
of the Code is interlocutory in nature
within the meaning of Section 397 (2) of
the Code and consequently no revision
against the same is maintainable."

22. Then came the decision in the
case of Ram Sumer Puri Mahant Vs.
State of U.P & others, reported in 1985
(1) SCC 427 as explained in the later
decision of the apex court in the case of
Jhummamal
Vs.
State
of
Madhya
Pradesh (1988) 4 SCC 452 and later on
dealt with in the case of Amresh Tiwari
Vs. Lalta Prasad Dubey and another
reported in (2000) 4 SCC 440. The
outcome of these three decisions was to the
effect that where an injunction order
passed by a competent court of civil
jurisdiction existed, then proceedings
initiated
under
Section
145
Cr.P.C.
deserved to be dropped. The Apex Court
however in the case of Ranbir Singh
(supra) held that even though the orders of
the High Court setting aside the orders
under Section 145(1) and 146(1) were
unsustainable, yet in the circumstances of
the case, the order of the High Court
quashing the preliminary order under
Section 145 (1) and 146(1) Cr.P.C. were
maintained leaving it open to the parties to
approach the civil court for an appropriate
interim order where the dispute was
pending without being influenced by the
findings recorded by the High Court. The
emphasis therefore again was laid on the
principle that where a civil proceeding has
been initiated and the matter is pending
between the parties, then the Magistrate
should be slow in invoking the jurisdiction
1196 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
of attaching or taking into possession of a
property involved in such a dispute.

23. In a matter of reference before the
Madhya Pradesh High Court a Division
Bench went on to hold that an order passed
under Section 146 (1) Cr.P.C. is not an
interlocutory order and would therefore be
revisable. The said decision is reported as
Keshav
Prasad
Bhatt
Vs.
Ramesh
Chandra 1990 Cr.L.J. 1541.

24. While carving out a distinction
between the orders of a final nature and
interlocutory nature the apex court in the
case of V.C. Shukla Vs. State, AIR 1980
Supreme
Court
962
gave
the
nomenclature of an "intermediate order" to
be between a final order and the initiation
of a proceeding which may be affecting the
interest of either of the parties, and could
not be termed as a pure and simple
interlocutory order. This view came to be
followed by a learned Single Judge of this
Court earlier who has made the present
reference in the case of Gulab Chand Vs.
State of U.P. 2004 (48) ACC 579 and
again by a learned single Judge of this
Court in the case of Lakshmi Kant Dubey
Vs. Smt. Jamuni & others, reported in
1999 (39) ACC 649.

25. In the aforesaid background this
Court has therefore to proceed to first give
an indication as to meaning of the words
final order, interlocutory order and an
intermediate or intermediary order and the
distinction between them.

26. The term "final order" means a
decision finally affecting the rights of the
contending parties. It is an issue which
goes to the foundation of a trial and can be
never questioned if it has been allowed to
stand. It would therefore be final. The test
of such finality would depend upon the
facts of a case indicating termination of
proceedings and ultimately affecting the
fate of the parties. A final order is one
which leaves nothing more to be decided
by its own force.

27. The word 'Final' connotes that
which comes at the end. It marks the last
stage of a process leaving nothing to be
looked for or expected. It is something
ultimate in nature. It puts to an end to
something or in other words, it brings to a
close any strife or uncertainty. It is the
conclusion of an event, that which comes
last. It connotes the finishing of some act
and completion of some beginning. It does
not allow the inclusion of anything or
something
that
might
be
possible
thereafter. A decisive stroke that cannot be
reversed or altered is final.

28. The word "interlocutory order"
as defined in the Law Lexicon by P.
Ramanatha Aiyar 1997 Edition, is an order
made pending the 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 the
progress of the litigation, and generally
collateral to the issues formed by the
pleadings and not connected with the final
judgment. It has been termed as a purely
interim or temporary nature of an order
which does not decide the important rights
or liabilities of the parties.

29. An interlocutory stage is an
intermediate moment before the happening
of the main event. It is something during
the course of an action in the shape of a
pronouncement which is not finally
decisive of a dispute. It is provisional but
not final touching some incident or
emergent question.
3 All] Munna Singh @ Shivaji Singh & others V. State of U.P. and another
1197

30. Then comes the third category of
the orders which fall in between. In our
opinion it is this aspect which was left out
in the decision of the Punjab & Haryana
High Court in the case of Kartar Singh
(supra) which deserves to be adverted to.
The word intermediate order as defined in
the law Lexicon (supra) is an order granted
before entry of judgment, made between
the commencement of an action and the
final pronouncement.

31. The word 'Intermedium' means
between or in the middle. It is something
intermediate in position or an intervening
action or performance before the final
conclusion. That which is situated or
occurring
between
two
things
is
intermediate. It holds the middle place or
degree between two extremes interposed in
between.

32. There is no doubt about what are
final orders and the controversy stands
narrowed down to the difference between
an
interlocutory
order
and
an
intermediate/intermediary order.

33. The distinction between the two,
interlocutory and intermediary would be
that the former does not bring about any
consequence of moment and is an aid in
the performance of the final Act.