T.N. Singh, J.
1. On a reference made by one of us sitting singly the following question has arisen for the decision of this Bench:--
'Whether an order passed by a Magistrate under Sub-section (1) of Section 146 of the Code of Criminal Procedure, 1973 is an interlocutory within the meaning of the expression as used in Sub-section (2) of Section 397, Cr.P.C, 1973.'
2. The occasion for this reference is provided by conflicting views of two judges of this Court on the question aforesaid. In Gajadhar v. Harbanshlal Awasthy, short noted in 1978 Cri LJ (Madh Pra) 324 at P. 341, the view taken was that an order passed under Section 146(1), Cr.P.C. was an order of interlocutory nature and it was observed as follows :--
'The order by its very nature is temporary and is meant to avert the likelihood of breach of peace. An order of this type does not, in my opinion, decide rights and liabilities of the parties concerning the dispute. It is purely of an interim of temporary nature. In my opinion, therefore, an order of the type is interlocutory order within the meaning of Section 397(2) of the Code and no revision would therefore lie against such an order.'
3. The other view was expressed in Suresh Chandra v. Sitabai, 1983 M.P.LJ 119, in following terms :--
'As regards the contention by the learned counsel for the petitioner that the order passed by the Sub-Divisional Magistrate, attaching the property and appointing a receiver, was final without entering into the controversy whether it was interlocutory order or a final one, suffice to say that it was an order of the moment and hence, ordinarily it was revisable.' (See: Ratanlal v. Vijaysingh 1976 MPLJ Note 14 and Hasmukh, J., Jhaveri v sheila Dadlani, (Reported in 1981 Cri LJ 958).
4. In Chapter X of the Code of Criminal Procedure, for short 'the Code') captioned 'Maintenance of Public Order and Tranquillity', are to be read Sections 145 and 148, clubbed under sub-heading 'Disputes as to immoveable property.' An Executive Magistrate is empowered to act under Section 145, Cr.P.C. when 'a dispute likely to cause breach of the peace concerning a land or water or boundaries. Thereof within his local jurisdiction' arises. By order in writing he directs parties concerned in dispute to attend his Court and to put in written statement of their respective claims as respect the fact of actual possession of the subject of dispute. After hearing evidence of parties adduced in support of such statement the Magistrate has to 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. The Magistrate has to issue an order under Section 145(6) declaring the party in possession to be entitled to retain the same until evicted therefrom in due course of law and for bidding any disturbance of such possession until such eviction. Under Sub-section (8) when the Magistrate finds that any crop or other produce of the property is subject to speedy and natural decay, he may make an order for appropriate custody or sale of such property and upon completion of the enquiry to make an order for the disposal of the property or the sale proceeds thereof.
5. The Sub-heading of Section 146 is important as it throws sufficient light on the object of the provision -- 'power to attach subject of dispute and to appoint receiver.' We may extract in extenso Sub-section (1):--
'(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 with-draw 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.'
6. In ourview Section 146 is a complete Code in so far its limited scope is concerned and that position is made clear when both parts of the provision, of the two sub-sections, are road together. The order under Subsection (i) is passed in any of the three contingencies:--
(1) When A Magistrate considers the case to be one of emergency;
(2) When he decides under Section 145 that none of the parties was in possession; and
(3) When he is unable to satisfy himself in that proceedings as to which of them was in possession on the relevant date.
An order under Section 146(1) may be passed 'at any time' in any of the aforesaid three contingencies specified therein 'to attach the subject of the dispute' agitated under Section 145 and the order served that independent object with an independent life and existence. Not only at the inception of the proceedings under Section 145 but also during the continuance and at the conclusion of the proceeding, the order can be passed. Its separate existence as also its far-reaching consequence are self evident. True, the common nexus between the two proceedings is 'breach of the peace'. What is important, however, is nature, scope and effect of orders passed in two proceedings; and that has been ignored in Gajadhar (1978 Cri LR 324 (Madh Pra) (supra). The proviso of Sub-section (1) of Section 146 does not change the nature or effect of the power exercised under the main provision and it emphasises merely the common nexus. Gajadhar fends to enlarge the scope of the proviso at the cost of main enactment.
7. While Sub-section (1) of Section 146 draws the parameters of Magistrate's competence and lays down the necessary jurisdictional requirements for his passing order to attachment thereunder. He is required to make necessary arrangement under Sub-section (2) for looking after the property attached and in that regard he is empowered to appoint a receiver who will be under his control and supervision. It is true that such a receiver can only he appointed if in respect to that property no received appointed by a Civil Court is already functioning but as per proviso to the Sub-section the Magistrate has to discharge him if subsequently a receiver is appointed by the Civil Court and pass 'other incidental or consequential order' in that regard. Like the power of attachment under Sub-section (1), the power to make arrangement for looking after the property and of appointment of receiver therefor is exercised independently. It is consequential upon exercise of power under Sub-section (1) and as such question which may be determinable under both Sub-sections of Section 146 shall always have different scope and different compexion which may have nothing to do with different orders passed at different stages of the enquiry under Section 145.
8. It would be logical therefore, to assume that when the Magistrate passes an order under Section 146(1) that order deals finally with rights of parties with regard to the subject matter of the dispute in so far as immediate possession thereof is concerned although the order may be of such duration as is statutorily specified. Those who raise or are concerned with the dispute are debarred from dealing with the attached property in any manner; those claiming to be in possession or claiming to have been forcibly dispossessed on the relevant date are evidently affected seriously by that order. As a result of attachement, even for the specified duration, the nature of the property of subject of the dispute undergoes material change as the property becomes custodia legis. The effect of the order extends not only to existing possession of, but also to right of any of parties to the proceeding under Section 145 to possess, the disputed property. In that respect the scope of the order under Section 146(1) is wider and its effect is more pervasive. Because, Section 145 expressly debars in the enquiry thereunder any reference to the merits of claims as to rights of any parties to possess the subject of the dispute.
9. We have to match the disparate scope of the provisions of Sections 145 and 146 with the common object of the different provisions of Chapter X and indeed also of the object particularly of provisions embodied in the two sections. In order to maintain public order and tranquillity in society, emergency power is vested in a criminal court to deal with civil rights of parties as respects properties. In Gajadhar (1978 Cri LR (Madh Pra) 324) (supra), the order passed under Section 146 (I) is described as : 'by its very nature, temporary and meant to avert the likelihood of breach of the peace.' It is also observed :
'An order of this type not......decide rights and liabilities of the parties concerning the dispute.' For this view, inspiration is evidently derived from the proviso of Sub-section (1) of Section 146. The mere fact that the Magistrate may withdraw at any time the attachment order when there is no longer any likelihood of breach of the peace does not, in our opinion, make the order a 'temporary' one and for reasons already stated it cannot also be said that it does not affect substantive rights of any parties concerned in the dispute during the period when subject of the dispute remains attached.
9A. We reiterate that 'possession' is a substantive right and that right or claim to that right of the parties concerned is substantially affected by that order. Any, further, the label 'temporary' would be doing violence to the language of the proviso and of the main enactment and importantly, also, to the object of the Chapter itself. Emergency powers in the very nature of things can and do provide ad hoc treatment and tinkering of civil rights of the parties can only be of 'temporary' nature. That would not minimise the effect of an order passed to contain emergency situation as infraction would still be there though that may be lost for specific duration. The holding in Gajadhar (supra) convers the proviso into substantive enactment, which it is not; and such a construction is prohibited by established canons. (See, Maxwell, 12th ed., pp. 189-90; also, Ram Narain, AIR 1955 SC 765; Iswarlal, AIR 1966 SC 459 etc.).
10. As pointed out in the order of reference, Section 397(2) Cr.P.C. speaks of 'interlocutory' order and not of 'temporary' order. The misconception from which Gajadhar ((1978 Cri LR (Madh Pra) 324) (supra) suffers in that regard has to be made clear. It has to be reiterated that the order negatively settles rights of parties entitled to possession of the subject matter of the dispute by debarring them from interfering with Court's possession of that on attachment. The unspecified duration of that order buttresses rather the severity of the infraction. It will indeed be wrong to presume that duration to be either long or short as facts of each case would be different. Similarly, it would also be wrong to assumed that in every case the Magistrate will exercise the discretion vested in him under the proviso to Section 146(1). What is unimpeachable is that the moment he passes the order and attaches the property, the right of parties to possess the same are frozen and remain so 'until a competent court has determined the rights.' As a consequence of the order, there will arise occasion to decide many questions which cannot await till such a decision (of civil court -- 'competent court') is rendered. To wit : whether any of the three conditions-precedent postulated under Subsection (1) of Section 146 existed for jurisdiction thereunder being exercised? Whether the Magistrate had rightly exercised his discretion in not withdrawing the attachment when there was no longer any likelihood of breach of the peace Many question would also arise with regard to the Magistrate's exercise of jurisdiction under Sub-section (2) and its proviso; and those also would be of equal significance for parties affected by the attachment order.
11. We may refer now to the core of the controversy, centered on Section 397(2) of Chapter XXX of the Code under which provision is made for 'Reference and Revision'. Section 397 invests jurisdiction in the High Court and Sessions Judge to call for and examine the record of any proceeding of any inferior Court situate within its/his local jurisdiction to examine correctness, legality and propriety of any finding, sentence of order recorded or passed and as to the regularity of the proceedings of the inferior Court. Sub-section (2) we extract in extenso:--
'(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 proceedings.'
12. The question is, if the order passed under Section 146(1) is of such nature that falls within the meaning of the term 'interlocutory order' used in afore-extracted Section 397(2) Cr.P.C. Happily, we are not required to employ any forensic skill to divine the legislative intent underlying the provision or the object of the provision. It has been stated on high authority that the power of revision contemplated under Section 397(1) is curtailed by Sub-section (2) with the object purely of ensuring that pending enquiries, trials and other proceedings do not suffer protraction (See; Parmeshwari Devi, AIR 1977 SC 403 (1977 Cri LJ 245); Madhu Limaye, AIR 1978 SC 47 : (1978 Cri LJ 165). Denial of the right of revision against an order passed under Section 146(1) would not obviously fulfill that object. There can be no question of proceeding whether under Section 145 or under Section 146, suffering any delay in disposal on account of the order passed under Section 146(1). We have already explained how that order finally deals with rights and liabilities of parties affected by the attachment made thereunder of the subject of the disspute. Except the consequential order to be made under Sub-section (2), nothing else remains to be done as will suffer protraction.
13. It may be rewarding to examine also the object of Sub-section (1) of Section 397. The wide scope of the power is writ large on the face of its language which invests jurisdiction in the Court of revision of such extensive nature as to examine any irregularity tainting the proceeding of the inferior court. It is not confined to examining 'correctness, legality and propriety of any finding, sentence or order' passed by the inferior court. Thus, in all matters where the bar of Sub-section (2) is not applicable the power of revision is exercisable. In Amarnath, AIR 1977 SC 2185: (1977 Cri LJ 1891) it was held that the order of the Magistrate summoning subsequently those accused who had been earlier released on perusal of police report was revisable under Section 397(1). The view expressed was that the bar contemplated under Sub-section (2) ought to be strictly construed so as not to operate against 'orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial.' True, it was also held that exercise of inherent power by the High Courts under Section 482, Cr.P.C. impermissible in a case in which the bar of Section 397(2) operated.
14. Although a larger Bench of the Court in Madhu Limaye, (1978 Cri LJ 165) (SC) (supra) took a different view as respects scope of High Courts power under Section 482, the interpretation of the term 'interlocutory order' used in Section 397(2), as expounded in Amarnath (supra), was accepted and approved. It was held that any order rejecting any contention on a point or issue which, when accepted, will finally conclude the particular proceedings, will not be an interlocutory order within the meaning of Section 397(2) and that the intention of the legislature in the context and setting of the expression was not to equate the expression as invariably being converse of the word 'final order'. Reversing the view expressed in Amarnath it was however held that High Court's inherent power was not affected by Section 397(2) and can be used to prevent abuse of the process of the Court or for the purpose of securing ends of justice. An order rejecting the application challenging court's jurisdiction to proceed with the trial was held in that case to be not an interlocutory order. In Municipal Corpn., Delhi v. Ram Kishan, AIR 1983 SC 67 : (1983 Cri LJ 159) the view expressed in Madhu Limaye (supra) on the respective scopes of Section 397(2) and 482 was confirmed. It was however still observed that there may be cases of overlapping of powers but such cases will be few and far between and in any case the inherent power can be used when no specific remedy was available.
15. Two decisions of learned single Judge of this Court on the question mooted are placed for our consideration. In Mohd. Rafiq v. Mohd. Azizur Rahman, 1983 MPWN 171, it has been held that the order of appointment of a receiver under Section 146(1) could be interfered with under Section 397(2) and also under Section 482, by the High Court. In Ratanlal v. Vijay Singh, 1976 MPLJ (S.N.) 14, the order was passed by in revision by the Sessions Judge and this Court upheld his jurisdictional competence. However, in that case Magistrate's 'Preliminary order' passed under Section 145 (1) was challenged in revision. A learned single Judge of the Bombay High Court in Hasmukh v. Sheila, 1981 Cri LJ 958, had held that order passed under Section 146(1) directing attachment and sealing of a flat was not an 'interlocutory order' and the, bar of Section 397(2) was not attracted.
16. For all the foregoing reasons we are of the view that the holding in Gajadhar (1978 Cri LR (Madh Pra) 324) (supra) that order passed under Section 146(1), Cr. P.C. was not revisable under Section 397 (1) Cr. P.C. is not sustainable. That is overruled. We answer, accordingly, in the negative, the question referred for the opinion of this Bench. In our view an order passed under Section 146(1), Cr. P.C. is not an 'interlocutory order' within the meaning of Section 397 (2), Cr. P.C.
17. Let the matter be listed now before the learned single Judge for final decision in the case to be rendered on merits.