JUDGMENT Umeshwar Pandey, J.
1. In the aforesaid revisions, either of the orders passed by the different Executive Magistrates under Sections 145(1) and 146(1) of Code of Criminal Procedure (hereinafter referred to as the 'Code') or the orders passed by the Sessions Judges/Additional Sessions Judges in revisional jurisdiction in matters relating to such orders passed under Sections 145(1) and 146(1) of the Code are under challenge. In all the cases Executive Magistrates had passed orders under Sections 145(1) and 146(1) of the Code, as aforesaid and the aggrieved parties have either challenged those orders in some of these revisions before this Court or some of them had challenged some orders before the Sessions' Court.
2. The revisionists here in this court are aggrieved against the orders of attachment passed under Section 146(1) of the Code and some of them have also expressed their grievances against the preliminary order passed under Section 145(1) of the Code. The parties counsel appearing from the other side have challenged the maintainability of such revisions in the light of the bar created by Section 397(2) of the Code and have strenuously argued that such revisions are not maintainable as the orders challenged are of interlocutory nature. Citations of different case law have been given by the learned counsel for the parties in support of their contentions. The case law of Division Bench of this court in Indra Deo Pandey v. Smt. Bhagwati Devi, 1981 (18) A.C.C. 316, has been relied upon in support of argument that the bar of Section 397(2) of the Code would operate in such cases. Learned counsel has further supported this point with the pronouncements of this court and other High Courts given by the learned Single Judges in Jai Prakash Singh and Anr. v. Radhey Shyam Singh and Ors., 1987 (24) A.C.C. 464, Jai Prakash v. Rajeshwar Prasad and Ors., 2002 All JIC 621 (Uttaranchal High Court), Kalloo and Ors. v. State of U.P. and Ors., 1997 All JIC 772, Atiq Khan v. Ashraf Khan and Anr., 1993 JIC 520, Gurdial Singh Mann v. Dharampal Singh Mann and Anr., 1990 Cri. L.J. 389 (Punjab & Haryana High Court), Jagannath Singh Chauhan and Anr. v. Smt. Shakuntala Singh, 1990 AWC 119 and Shishu and Ors. v. State of Haryana and Ors., 1982 Cri. L.J. 124 (Punjab & Haryana High Court).
3. From the other side in support of their contentions that the bar of Section 397(2) would not operate, the learned counsel have placed reliance upon the following case law:-
(1) Gulab Chand v. State of U.P. and Anr., 2004 (48) ACC 579, (2) Laxmi Kant Pandey v. Smt. Jamuni and Ors., 1999 (39) ACC 649, (3) Ram Sumer Puri Mahant v. State of U.P. and Ors., 1985 AWC 128 (S.C.), (4) Mahant Ram Saran Dass v. Harish Mohan and Anr., 2001 (1) JIC 381 (SC), (5) Ranbir Singh v. Dalbir Singh and Ors., 2002 (2) AcrR 1457 (S.C.), (6) Ram Lachhan and Ors. v. State of U.P. and Ors., 2000 (1) A.Cr.R. 514, (7) Madhu Limaye v. State of Maharashtra, 1978 (15) A.C.C. 183 (S.C.).
4. With the help of aforesaid cases, the decision has to be taken in the present revisions as to whether these petitions are barred under Section 397(2) of the Code or they are maintainable either as criminal revisions or petitions under Section 482 of the Code. This point which arises for determination may be put in the following words:-
"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."
5. The word "Interlocutory Order" as appearing in Section 397(2) of the Code, came for interpretation before the Apex Court in Madhu Limaye's case (supra) as back as in the year 1977. A bench consisting of three Hon'ble Judges of the Apex Court, while discussing the aforesaid aspect of the bar, as contemplated under Section 397(2) of the Code has observed that the word occurring in a particular statement, may be plain and unambiguous, still it has to be interpreted in a manner, which would fit in the context of other provisions of the statute and bring about the real intention of the legislature. The revisional power of the High Court was kept intact by the framers of the new Code but they have created a bar on the exercise of that power in relation to any 'interlocutory order'. In such a situation the intention of the legislature appears as not to equate the expression 'interlocutory order' invariably being converse of the words 'final order'. The Apex Court in this context itself has further observed that there may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (1947 FCR 180) but yet it may not be 'interlocutory" order' pure and simple. Some kind of order may fall in between the two. It has been further observed by the Hon'ble Supreme Court in the said case that on consideration of the context in which the word 'interlocutory order' has been used under Section 397(2), it would definitely not include an order rejecting the plea of either party, which when accepted would conclude the particular proceeding. The order may not be a 'final order' but may also not be 'interlocutory order'. It may however, be an order of the type falling in between the two and the bar created under Section 397(2) is not to be attracted to such intermediate orders. Rejecting the test of Kuppuswami's case to judge what is an 'interlocutory order', the aforesaid bench of the Hon'ble Apex Court has also observed in the said judgement that universal application of the principle that what is not a 'final order' must be interlocutory order' is neither warranted nor justified for such interpretation of the expression 'interlocutory order' appearing in Section 397(2) of the Code.
6. Relying upon the aforesaid interpretation of the expression 'interlocutory order' given in Madhu Limaye case (supra), the Apex Court in the year 1980 in V.C. Shukla v. State, AIR 1980 S.C. 962 further held that before a 'final order' is passed in a criminal proceeding there could be some orders affecting the interest of either of the parties which may not be termed as pure and simple 'interlocutory orders' and thus, the Hon'ble Court have reverted to the same view as in Madhu Limaye and adopted to the nomenclature given to such order being 'intermediary order' which interpretation has been followed by the learned Single Judge of this Court in Ram Lachhan and Ors. v. State of U.P. and Anr., 2000 (1) A.Cr.R. 514. In this case, the learned Single Judge while assessing the merit of an order passed by the Sub Divisional Magistrate under Section 146(1) of the Code termed it as an 'intermediary order' liable to be questioned under revisional jurisdiction of the court as provided by Section 397 of the code. The Hon'ble Apex Court also in the case of Ranveer Singh and Ors. (supra) upholding the order passed by the High Court in its revisional jurisdiction where the orders of the Magistrate passed under Sections 145(1) and 146(1) of the Code was under challenge before it, has observed as below:-
"In these circumstances, we are of the view that while maintaining the order of the High Court, quashing the preliminary order passed by the Sub-divisional Magistrate under Section 145(1) and the order of attachment of the property under Section 146(1), Cr.P.C. leave should be granted to the parties to approach the civil court for appropriate interim order and the civil court should deals with the application for interim order without being influenced by the observations made/findings recorded by the High Court in the impugned judgment It is ordered accordingly."
7. Even though in the aforesaid case of Ranveer Singh (supra), the Apex Court has not very specifically laid down any principle as to what is an 'interlocutory order' within the meaning of Section 397(2) of the Code yet it has upheld the competence of the High Court under its revisional jurisdiction to set aside an order passed under Sections 145(1) and 146(1) of the Code.
8. On the strength of such interpretation as given to the word 'interlocutory order' appearing under Section 397(2) of the Code, the learned Single Judge of this Court in Laxmi Kant Dubey v. Smt. Jamuni and Ors., 1999 (39) A.C.C. 649, has held that an order under Sections 145(1) and 146(1) should not be treated as an 'interlocutory order' as to bar the exercise of revisional jurisdiction of court of Sessions Judge or this Court.
9. The cases in which the proceedings under Section 145(1) of the Code are drawn, may have different facts and may have different implications, of such preliminary orders upon the rights or the interest of the parties. In a given case if the rights of the parties in property have been duly adjudicated upon in a Civil Suit and still the Magistrate prefers to draw the proceeding under Section 145 of the code, the party aggrieved with such order should not be denied the remedy available to it under the revisional jurisdiction of the court provided under Section 397 of the Code, on the pretext that such order is an 'interlocutory order'. In fact the Magistrate lacks jurisdiction in such matters where the rights of the parties have already been adjudicated upon by a competent civil court, nor the criminal court has jurisdiction to proceed with parallel proceeding under Section. 145 of the Code while the Civil Court in a pending suit also has already done some sort of adjudication as to the rights of the parties, as for example orders passed on temporary injunction application etc. under Order 39 Rule 1 or 2 of the Code of Civil Procedure. If such proceedings are permitted and there is an order of attachment also under Section 146(1) of the Code passed by the Magistrate against one party, who claims himself to be in possession on the spot at the time of such attachment and he is denied the remedy available under the revisional jurisdiction of the court, it would amount negating a relief to such aggrieved party till such criminal proceedings remain pending. To my mind, this could not be the intention of legislature while framing the Code and providing the provision of such bar by adding sub Section (2) of Section 397 of the Code. For the aforesaid given reasons, I have laid down in Gulab Chand case (supra) that such an order under Section 146(1) or 145(1) of the Code would not be termed as 'interlocutory order' as to attract the bar created under Section 397(2) of the Code.
10. Learned counsel appearing for the other sides opposing these revisions has though cited the aforesaid cases of Jay Prakash (supra), Kalloo & others (supra), Atiq Khan (supra), Gurdial Singh Mann (supra), Jay Prakash Singh (supra), Jagannath Singh Chauhan (supra) and Shishu and Ors. (supra) decided by learned Single Judges of this court and other High Courts, yet I do not find that it would be just and proper to term those orders of the Magistrate passed under Section 145(1) and 146(1) of the Code to be 'interlocutory order'. Since such orders may also decide or touch important rights of the parties, they should not be covered within the meaning of 'interlocutory order'. The aforesaid one example has been given and several other examples have been cited by the Apex Court in the case of Madhu Limaye (supra). An order taking cognizance by the Magistrate under Section 145(1) of the Code even in case where the rights of the parties have been adjudicated upon by a competent Civil Court, shall clearly create a situation which should be termed as an abuse of the process of court and therefore, for the purposes to secure the ends of justice, in such matters, interference by the High Court or the Sessions Court in its revisional jurisdiction is absolutely necessary. Nothing contained under Section 397(2) can limit or affect the exercise of inherent power by the High Court. May be as laid down in Madhu Limaye's case (supra) such cases would be very few and far between. Such orders of the Magistrate should fall in the category of 'intermediate order'. This is why the learned Single Judge of this court in Ram Lachhan case (supra) has put such order in the category of 'intermediate order'.
11. But to lay down a principle that such orders under Sections 145(1) and 146(1) of the Code are not 'interlocutory order', there is an impediment, which I feel, is very genuine in the face of Division Bench case cited by the learned counsel opposing these revisions. The case is Indra Deo Pandey (supra) in which this court sitting in Division Bench has held that the order of attachment of property under Section 146(1) of the Code made during the pendency of the proceedings under Section 145 of the Code even if is improper order, it is an error purely of intermediate or temporary nature. It neither decides nor purport to effect any legal right of any of the parties. It is simply made for the purposes of effective adjudication of the proceeding and it does not result in disposal of any part of the controversy between the parties. The aforesaid Division Bench has laid down the law by disagreeing with the law propounded by another Division Bench of this Court in Sohan Lal Barman v. State, 1977 A.C.C. 10, and has held that the said law could not be held to be good law any more. Without making any observation for or against the law laid down by the two Division Benches, and in view of the aforesaid discussions and observations of the Apex Court in different cases, I am however of the view that even after 1981 when this Division Bench law of Indra Deo Pandey (supra) was already laid down, the Apex Court in such situations and on identical facts of the cases relating to the proceeding under Section 145 of the Code, has not found such orders passed under Sections 145(1) and 146(1) of the Code to be of interlocutory nature. The entertainment of revisions against such orders by the courts have been found to be valid by the Apex Court in the case of Ranveer Singh (supra). The following observation of the Division Bench in Indra Deo Pandey (supra) are quite note worthy for effective appreciation of the matter end is extracted :-
"While making an order under Section 146 for attaching the property in dispute the Magistrate is not required to make any inquiries or to adjudicate the rights of any person to remain in possession of the property in dispute or to make any other adjudication of any other type. All that he has to be satisfied is that there is a case of emergency namely, that breach of peace is likely to occur even before he has been able to hold a proper inquiry with regard to possession under Section 145 of the Code and if that be so, he can take steps to attach the properties and to arrange for its management with the twin object of avoiding breach of peare being committed by either of the two parties and to safeguard the interest of the party which may be found to be entitled to its possession either in accordance with final orders made under Section 145 or a decision given by competent civil court. Viewed in this light, it is apparent that the order for attachment of property under Section 146(1) of the Code made during the pendency of the proceedings under Section 145 is an error purely of an intermediate or temporary nature. It neither decides nor purports to effect any legal right of any of the parties. The order is made for the purpose of effective adjudication of proceedings initiated under Section 145 of the Code. It does not result in the disposal of any part of the controversy between the parties or the proceedings under Section 145. In such a case a question of proceedings being concluded one way or the other if the plea of one party or the other is accepted arises. Accordingly applying the test laid down by the Supreme Court in the case of Amarnath Chawala v. State of Haryana (supra) in the light of the observations made by that Court in Madhu Limaye's case (supra) are, of opinion that an order made during the pendency of proceeding under Section 145 of the Code for attaching property in dispute under Section 146(1) of the Code is purely an interlocutory order within the meaning of Section 397(2) of the Code."
12. From the aforesaid observation of the Division Bench made in the Indra Deo Pandey (supra), it is clear that the order passed under Section 146(1) of the Code was found by it to be of 'interlocutory nature' simply because such orders are of purely temporary nature and even if erroneous could be corrected by the Magistrate while finally deciding the dispute of possession between the parties in such proceedings. The Hon'ble Judges of the Bench have also held that the Magistrate is not required to make any inquiry or to make any other adjudication about the rights of either of the parties to remain in possession. He has to simply record his satisfaction as to the emergency of the likely breach of peace by the parties in case the attachment is not made. Obviously, such orders may be of temporary nature, which are likely to be corrected at the time of final adjudication in the case. But they definitely touch and affect the rights of the party which claims itself to be in valid possession of the said property. The final adjudication in the case, as we have noticed in such matters, is not that quick or easy. In some cases it takes a decade or even more to reach at finality in the court of first instance itself. The dispossessed party which is finally held to be entitled to the possession of the property, if is restrained by such attachment to reap the fruits of the property for years, one can very well imagine his plight. Obviously, an order under Section 146(1) of the Code is passed without making any inquiry and there are definite chances also for the Magistrate to commit an error while making such direction for attachment of the property or appointment of receiver over that property. Even if it is considered that the existence of emergency alone is sufficient for making such order by the Magistrate, in that case also there are sufficient chances for commission of error by the Magistrate while deciding this aspect of the matter that there exists emergency and the order of attachment is imminent. How and in what manner the Magistrate comes to the conclusion of his satisfaction about the existence of emergency is a factor which may require scrutiny by a higher court else it would render the aggrieved party remediless and that situation should not be said to have been validly comprehended of by the legislature while creating this bar of Section 397(2) in the Code. Thus, what I personally gather from the circumstances and facts as can be available in such proceedings under Section 145 of the Code, a preliminary order under Section 145(1) or the order of attachment or appointment of receiver under Section 146(1) of the Code could in no case be covered within the purview of the bar created by Sub-section (2) of Section 397 of the Code. Even an order of temporary nature may have its far-reaching consequences upon the rights and interest of the aggrieved party and if by including these orders covered within the meaning of 'interlocutory order', the aggrieved party is rendered remediless which should not be said to be the intention of the framers of the statute while creating the bar against the revisional jurisdiction of the Sessions Court of this Court.
13. In the aforesaid facts and circumstances while keeping in view the different legal propositions, as discussed above, I find that the point formulated by me at page-3/4 of this judgment, requires a definite law to be laid down by a Full Bench of this court. The legal controversy so arisen requires to be set at rest so that there may not remain any more confusion for the future in such matters. Since the aforesaid revisions involve this controversy and need answer to the question, formulated above, I feel it proper to request Hon'ble the Chief Justice for constitution of a Full Bench to decide and settle a law on the Point.
14. Hon'ble the Chief Justice is requested to constitute a Full Bench for the purpose to decide the aforesaid formulated question of law so that both the legal controversies for the future, may be settled.
15. The office is directed to lay the records of the aforesaid revisions before Hon'ble the Chief Justice for constituting a Full Bench and then it shall proceed in accordance with the directions so given.
16. The stay order granted in respective revision petitions shall continue to be operative till further orders of the court.