PATHU Vs. STATE OF KERALA

JUDGEMENT

(1.) IN pursuance of a private complaint by the petitioner regarding theft of certain articles by the first respondent, a search warrant was issued by the Judicial Magistrate Second Class, Ernakulam and a cow and two calves were seized by the police. The petitioner thereafter filed Crl. M. P. 2153/75 before the Magistrate under S. 451 of of the Criminal Procedure Code for custody of the cow and calves till the final disposal of the case. The second respondent filed Crl. M. P. 2151 of 1975 claiming that the cow and calves belonged to her and were in her possession at the time of seizure and that they should be released to her. The court allowed the prayer of the petitioner and dismissed Crl. M. P. No. 2151 of 1975. The second respondent filed Crl. R P. 22/75 against the order in Crl. M. P. No. 2153 of 1975 before the Sessions judge, Ernakulam. Crl. R. P. 23 of 1975 was filed before the same Court against the order in Crl. M. P. 2151 of 1975. The Sessions Judge dismissed Crl. R. P. No. 22/ 75 stating that no revision would lie against an interlocutory order in a pending case. The court allowed Crl. R. P. 23 of 1975 and remanded Crl. M. P. 2151 of 1975 to the trial court for disposal after taking evidence. The present revision petition is filed against the order of remand.

(2.) THE revision petitioner places reliance on S. 397 (2)of the Criminal Procedure Code, which runs as follows: "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.) IN Salaman v. Warner (1891) 1 Q. B. 734, Lord Esher M. R. distinguished a final decision from an interlocutory decision in the following terms: "if their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purpose of these rules, it is final. On the other hand if their decision, if given in oneway, will finally dispose of the matter in dispute but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory. " IN Mohammed Amin Brothers Ltd. v. The Dominion of INdia (AIR. 1950 F. C. 77), an interlocutory order is distinguished from a final order as follows: "the fact that the order decides an important and even a vital issue is by itself not material. If the decision on 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. " It follows that whether a particular order is interlocutory or not depends upon the nature of the petition which is disposed of and its connection with the main proceedings and its bearing on the final order in the main proceedings. As observed by Kania C. J. in Kuppuswamy Rao v. The King (AIR. 1949 F. C. 1) the meaning to be given to the expression'final order' should be the same in civil and criminal cases. A final order according to the dictum in the above case in an order which finally determines the points in dispute and brings the case to an end. What exactly is a final order has been decided by the Supreme Court in a number of cases in connection with appeals filed before it under Art. 133 and 134 of the Constitution.