HASMUKH J JHAVERI Vs. SHELLA DADLANI

JUDGEMENT

(1.) I would have pulled down the curtain on the proceeding with this conclusion at this point as it is not necessary to consider whether the impugned order of the learned Magistrate is interlocutory or not. It is obviously because the matter is now seized of this Court and there may not be those limitations which are sought to be placed on the revisional powers of the Sessions Court vis-a-vis an interlocutory order and in a fit case this Court is empowered under the inherent powers to upset the impugned order. It is from that point to view. I am of the opinion that when the impugned order is manifestly unjust and untenable in law, this Court will be justified in exercising its discretion under the inherent powers under Section 482 of the Code and cannot assume the role of a salient and passive spectator. Once this premise is accepted, then the question as to whether the learned Sessions Judge should have interfered in the revisional jurisdiction must pale in the background, though, I would hasten to add that there is abundant justification in the interference by the learned Additional Sessions Judge even in the revisional jurisdiction. However, as Shri Desai, the learned counsel, has fully canvassed that point and as such with due deference to him as also it is stated at the Bar that the Sessions Court is confronted with this aspect time and again, I deem it proper and desirable to refer to it thought not in all its details as I am firm in my opinion that in reality it is hardly capable of creating any controversy.

(2.) To say that the attachment of the flat and its sealing is an interlocutory order obviously would be, even ex facie misconception of the notion of an 'interlocutory order'. I can derive full reinforcement to this conclusion on the basis of certain observation in some of the judicial pronouncements which the Court would be well justified to rely upon for furnishing an analogy and guidelines. What is this concept of 'interlocutory order' has been highlighted in Amar Nath v. State of Haryana, AIR 1977 SC 2185 : (1977 Cri LJ 1891), which is reiterated in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 : (1978 Cri LJ 165) and we have also in that category a recent pronouncement in V. C. Shukla v. State, AIR 1980 SC 962 : (1980 Cri LJ 690). The ratio is well enunciated and really speaking it is not necessary to have a deeper probe, though some aspects can be incidentally referred to in that limited field. In Amar Nath's case (supra) on the basis of the F.I.R. and on holding investigation, the Police submitted a charge-sheet against some persons except the appellants therein as in the opinion of the police no case was made out against them. The appellants, therefore, were set at a liberty by the learned Magistrate, who accepted the police report. A revision petition filed by the complainant in the Sessions Court met with no success. A private complaint then came to be filed by the complainant against all the accused persons including the appellants which also met with the same fate of dismissal, though on merits. The said order of dismissal was, however, set aside by the Sessions Court and the complaint was revived. The learned Magistrate in pursuance thereof, without holding and directing any enquiry, straightway issued summonses against the appellants which was tantamount to issuance of process, with the resultant consequence that the appellants therein were put up for trial. The High court declined to interfere on the ground that the order of issuing summons was an interlocutory order; which order was upset by the Supreme court holding that it was a matter of moment and it decided the serious question as to the rights of the appellants to be put on trial and as such was not an interlocutory order and consequently the revision was declared to be competent. A full survey and resume of all the relevant aspects vis-a-vis the concept of interlocutory order was taken. An interlocutory order was being equated with an order of purely interim and temporary nature or an order which could be in the nature of an order embracing items which could be steps in aid of the proceeding; whereas the other aspects were lifted out of the purview of such concept. It was specifically observed that any order of moment or an order which substantially affects the rights of parties or decides certain rights of the parties could not be said to be an interlocutory and a further category was envisaged which could be treated as intermediate order. Which could in proper cases be taken out of the sweep of interlocutory order. A reference was made to the ratio of certain other decisions. The category of order merely of procedural nature without in any manner affecting the rights and liabilities of the parties has been illustrated, such as orders summoning witnesses, adjourning cases, calling for reports, discovery, production and inspection of documents etc. Reliance was also placed on the ratio in Mohanlal Maganlal Thakkar v. State of Gujarat, AIR 1968 SC 733 : (1968 Cri LJ 876), which would set at rest the controversy that is sough to be raised on the ground that the order does not finally decide the proceeding but the controversy still remains alive and even such a contingency could be taken out of the pale of an interlocutory order; when it was observed as (at P. 882 of 1968 Cri LJ) : "Finality of an order could not be judged by the correlating that order with controversy of the parties. The fact that the controversy still remains alive was irrelevant." Making a reference to certain other decisions, it was also indicated that an order granting temporary injunction may not necessarily be an interlocutory order as it decides some right of the parties; though the said observations arose out of the provisions of the Letters Patent of the High Courts in India. In the final analysis, the Supreme Court observed and held as (at P. 1896 of 1977 Cri LJ) :-

(3.) In Madhu Limaye's case (1978 Cri LJ 165) (sc) (supra) the concept of interlocutory nature of an order which was high-lighted in Amarnath's case (1977 Cri LJ 1891) (SC) was reiterated In the said case the appellant therein had taken a preliminary objection at the threshold of the criminal proceeding about the jurisdiction of a Court at Bombay and it is in that context, it was observed that when the High Court declined to interfere with the decision of the said issue which would go to the root of the matter ousting the jurisdiction of the Court and thus had a capacity of terminating the proceeding. However, there is one feature which strikingly occurs during the course of the observation and which has some relevance. The Supreme Court by another limb of reasoning indicated that if any occurrence falling short of finality is to be embraced by term "interlocutory order". Then the legislative intent would end into frustration and it was accordingly observed as (at p. 170 of 1978 Cri LJ :-