Mrs. JesmIn Rahman Vs. Mrs. Afruza Begum and anr. - Court Judgment

Excerpt:
- - -(1) whenever an executive magistrate is satisfied from a report of a police officer 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 claims as respects of the fact of actual possession of the subject of dispute. 8. a close analysis of the provisions of section 145 shows that the magistrate is empowered to try a proceeding, under sub-section (1) of section 145, if he is satisfied from a report of a police officer or upon other information that there is a dispute likely to cause breach of the peach exists concerning any land or water or the boundaries thereof, within his local jurisdiction. a careful reading of section 145(1), also shows that on receipt of report or information as aforementioned, the magistrate 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 claims as respects the fact of actual possession of the subject of dispute. what is material is that the executive magistrate must feel satisfied about existence of a dispute as envisaged in section 145(1) and must assign the grounds of his being so satisfied. an order of attachment under section 146(1) is inherently temporary in nature as the order may be withdrawn, at any time, by the magistrate if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. 14. the revisional jurisdiction, it may be noted, is exercisable by both the high court as well as the sessions judge. section 397(1) empowers the high court as well as sessions judge to 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 as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceeding 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, he be released on bail or on his own bond pending the examination of the record. this apart, an order of attachment can be withdrawn at any time if the magistrate is satisfied that likelihood of breach of peace no longer exists with regard to the subject of dispute. i.a. ansari, j.1. this petition, made under section 482, cr. p.c. (in short, 'the code'), has raised a very important question of law and the question is this : is an order passed by an executive magistrate drawing proceeding, under sub-section (1) of section 145 of the code, revisable? this question, in turn, brings us to yet another question and the question is : whether an order, passed, under sub-section (1) of section 145, an interlocutory order?2. before making endeavour to find answers to the questions posed above, appropriate it is that the facts leading to this petition are taken note of. the petitioner herein submitted, as first party, a petition to the sub-divisional magistrate, kamrup metropolitan district, alleging, inter alia, thus : the petitioner is the lawful owner and possessor of the land described in the schedule to the said petition, which is hereinafter referred to as the 'disputed land.' the second party, who has no right, title or interest over the disputed land, broke the boundary wall standing on the land and tried to encroach upon and occupy the disputed land. the dispute between the parties has given rise to serious apprehension of breach of the peace and tranquillity. based on this petition, which was supported by an affidavit, learned sub-divisional magistrate, kamrup metropolitan district, passed an order, on 22-8-2007, drawing a proceeding under section 145 of the code in respect of the disputed land involving the parties aforementioned. case no. 242(m)/2007 accordingly came into existence. by the same order, i.e., the order, dated 22-8-2007. aforementioned, learned sub-divisional magistrate also directed attachment of the disputed land excluding the dwelling house standing thereon. aggrieved by the order, dated 22-8-2007, and challenging the same on grounds, inter alia, that the very assumption of jurisdiction, under sub-section (1) of section 145, by the sub-divisional magistrate was illegal, the second party to the said proceeding (i.e., the opposite party no. 1 herein) filed a revision under section 397 read with section 401 of the code. this revision came to be registered as criminal revision no. 14/2007 and an order was passed therein, on 24-8-2007, by the learned additional sessions judge (ftc) no. 4, kamrup, guwahati, admitting the revision and staying operation of the order, dated 22-8-2007, aforementioned.3. contending, now, that the very entertaining of the revision petition by the learned additional sessions judge is without jurisdiction, the petitioner has impugned, in this petition, made under section 482 of the code, the order, dated 24-8-2007, aforementioned.4. i have heard mr. a. r. sikdar, learned counsel for the petitioner, and mr. a. b. choudhury, learned senior counsel, appearing on behalf of the opposite party no. 1. i have also heard mr. b. b. gogoi, learned additional public prosecutor, assam, who has appeared on behalf of the state.5. it is submitted by mr. sikdar that the drawing of a proceeding, under section 145(1) of the code, is an interlocutory order and such an order, being interlocutory in nature, is not revisable. considered thus, contends mr. sikdar, the order, dated 22-8-2007, aforementioned, whereby proceeding under section 145(1) was drawn, is an interlocutory order and that such an order is, in the light of the provisions of section 397(2) of the code, not revisable and, hence, the learned additional sessions judge committed serious error of law in entertaining the revision and in staying the proceeding.6. resisting the submissions made on behalf of the petitioner, mr. choudhury, learned senior counsel, contends that an order, under sub-section (1) of section 145, is not an interlocutory order, for, exercise of jurisdiction by a magistrate, when he has no jurisdiction at all to draw such a proceeding, cannot be treated as an interlocutory order. it is also contended by mr. choudhury that in the facts and circumstances of the present case, the learned executive magistrate had no power to draw a proceeding under sub-section (1) of section 145 and, hence, the learned additional sessions judge acted within the ambit of law, when he entertained the revision and stayed the proceeding. as far as learned additional public prosecutor is concerned, his submission is that in the facts and circumstances of the present case, the order passed, under sub-section (1) of section 145, is in lawful exercise of jurisdiction and is, therefore, not revisable.7. before i come to the question as to whether an order passed under sub-section (1) of section 145 is or is not an interlocutory order, it is imperative that the scheme of section 145 read with section 146 is borne in mind. section 145 appears under chapter x of the code, which reads, 'maintenance of public order and tranquility.' this chapter is divided into separate groups, sections 145 and 146 fall under group-d. though the heading of the chapter, in any legislation, is not the sole criterion for determination of the scope of the provisions, which may be embodied in such a chapter, the fact remains that the heading of the chapter, in a piece of legislation, does reflect the legislative intent. a careful analysis of the various provisions contained in chapter x would show that, this chapter, in substances, deals with maintenance of public order and tranquillity. in other words, a private dispute or a dispute, which has no bearing on public order and tranquillity, cannot be regarded as a dispute and such a dispute does not empower an executive magistrate to assume jurisdiction under sub-section (1) of section 145, which reads as under:145(1). 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 officer 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 claims as respects of the fact of actual possession of the subject of dispute.8. a close analysis of the provisions of section 145 shows that the magistrate is empowered to try a proceeding, under sub-section (1) of section 145, if he is satisfied from a report of a police officer or upon other information that there is a dispute likely to cause breach of the peach exists concerning any land or water or the boundaries thereof, within his local jurisdiction. a careful reading of section 145(1), also shows that on receipt of report or information as aforementioned, the magistrate 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 claims as respects the fact of actual possession of the subject of dispute.9. the provisions, contained in sub-section (1) of section 145, show that the source of information, for the purpose of drawing a proceeding under sub-section (1) of section 145, is not material; what is material is that the executive magistrate must feel satisfied about existence of a dispute as envisaged in section 145(1) and must assign the grounds of his being so satisfied. this part, the dispute must relate to land, water or boundary thereof and the dispute must be such, which is likely to cause breach of the peace. the expression 'breach of the peace' does not really mean mental peace of the parties concerned. disturbance of public order is distinct from actions of the individuals, which do not disturb the society to the extent of vibrating a general disturbance of public tranquillity. public order means the even tempo of life of the community in a given locality. when one party, illegally or forcibly, occupies land of another party, the people, in general, or even neighbours of such a party may be shocked and mentally disturbed, but life of the community may still move on keeping pace with the even tempo of life of the community. if, by such act of dispossession, even tempo of life of the community is disturbed or jeopardized, it may become a case of disturbance of public order and tranquility. the acts of a private party, which affect personal rights of another party do not disturb the even tempo of the society, for, such feuds are private feuds. basis of jurisdiction under section 145(1) is a dispute, which is likely to cause a breach of the peace. it is not a breach of mental peace of the parties to apprehend danger of breach in the locality. ordinarily, a person, dispossessed from his land, shall sue for recovery of the immovable property under the provisions of the specific relief act and if there is a threat to his dispossession, he should institute a suit to obtain injunction. these are, ordinarily, forum for establishing rights of the litigants. a proceeding under section 145 is, therefore, an extra-ordinary provision to grant extra ordinary relief, when there is likelihood of breach of the peace in a given locality. (see maqbul hussain v. syadur rahman reported in (1986) 2 glr 167. the final order of the magistrate is, however subject to the decision of the civil court. it is, therefore, clear that in respect of private dispute between two parties, which does not disturb law and order or occasion breach of the peace in the locality, the forum for obtaining relief is the civil court of competent jurisdiction and not an executive magistrate's court. ram sumer puri mahant v. state of up : air1985sc472 , discourages drawing of proceedings, under section 145, as far as possible. in fact, ram sumer puri mahant (supra) lays down that the magistrate should initiate a proceeding under section 145 only when the essential elements of the provisions, contained in section 145, are found present in a given case.10. what emerges from the above discussion is that exercise of power under section 145 (1) cannot be arbitrary and the provisions of section 145 cannot be invoked unless the conditions precedent prescribed therein are available.11. coupled with the above, what also needs to be noted is that an order of attachment can be passed by an executive magistrate in exercise of his powers under sub-section (1) of section 146 if upon drawing a proceeding under sub-section (1) of section 145, the magistrate considers the case to be one of emergency. this position of law is not in dispute. that an order of attachment, under section 146(1), is an interlocutory order is, in fact, not in dispute. thus, an order of attachment cannot be made unless a proceeding under section 145 is pending. an order of attachment under section 146(1) is inherently temporary in nature as the order may be withdrawn, at any time, by the magistrate if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. an order, under section 146(1), is nothing, but a step-in-aid in the pending proceeding under section 145. an order of attachment is, thus, neither a final order nor a quasi final order. in fact, by attachment, the subject of dispute becomes custodia legis. (see deokuer v. sheo prasad : [1966]1scr580 . since an order of attachment is revocable at any stage of the proceeding, it becomes inherently temporary in nature and is, therefore, regarded as an interlocutory order. (see indrapuri primary co-operative housing society ltd. and anr. v. sri bhabani gogoi reported in (1991)1 glr 228 : 1991 cri lj 1765.12. the limited question, therefore, which concerns us, in the present petition, is as to whether an order under sub-section (1) of section 145 is or is not an interlocutory order, for, if such an order is held to be interlocutory order, the learned additional sessions judge must be held to have acted beyond his jurisdiction inasmuch as the revisional jurisdiction cannot, in the light of the provisions of sub-section (2) of section 397, be exercised in respect of an interlocutory order. conversely, if an order passed, under sub-section (1) of section 145, commonly known as preliminary order, is not to be treated as an interlocutory order, then, a sessions judge must be held to have jurisdiction to revise such an order if the facts and circumstances of the case so warrant.13. to find answer to the question as to whether a preliminary order, passed under sub-section (1) of section 145, is or is not an interlocutory order, one has to, first, ascertain as to whether every order passed, during the course of a proceeding, can or cannot be regarded as an interlocutory order. the question, therefore, is as to what an interlocutory order means?14. the revisional jurisdiction, it may be noted, is exercisable by both the high court as well as the sessions judge. section 397(1) empowers the high court as well as sessions judge to 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 as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceeding 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, he be released on bail or on his own bond pending the examination of the record.15. from a careful reading of section 397(1), it becomes clear that revisional jurisdiction is exercisable for the purpose of correcting any finding, sentence or order or for the purpose of removing any illegality in any finding, sentence or order or for the purpose of setting aside the impropriety with which may suffer any finding, sentence or order. such being the object of the revisional jurisdiction, it is clear that the revisional jurisdiction aims at correcting miscarriage of justice arising from misconception of law or of procedure. in effect, thus, the revisional jurisdiction aims at keeping the inferior courts within the bounds of law. no wonder, therefore, that in rajendra kumar sitaram pande and ors. v. uttam and anr. : 1999crilj1620 , the apex court observed, '6. discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of section 397, whenever there has been miscarriage of justice in whatever manner.'16. from a careful reading of section 397(2), it becomes clear that section 397(2) bars exercise of revisional jurisdiction in respect of interlocutory orders'. the idea behind putting an embargo on the exercise of revisional jurisdiction against interlocutory orders' is the legislative intent to curtail delay in the disposal of the proceedings covered by the code. the expression 'interlocutory order' has not been defined in the code. however, an 'interlocutory order is not converse of the final order nor will it be correct to say that every order passed, which is not final, is an 'interlocutory order'- be such an order, an order, whereby a criminal proceeding is initiated, or be such an order, an order, which is passed during the course of such a proceeding. if the expression 'interlocutory order' is strictly construed without considering the nature of the order, the effect would be that every order, which has not determined or concluded a proceeding, would be an 'interlocutory order'. discarding such a narrow meaning, which had been sought to be attributed to the expression 'interlocutory order', occurring under section 397(2), it has been pointed out, in amarnath v. state of haryana : 1977crilj1891 , by the apex court that the expression interlocutory order', occurring in section 397(2), has been used in a restricted sense and not in a broad or artistic sense and denotes only those orders, which are interim or temporary in nature and do not decide or touch upon the important rights of the parties. the decision in amarnath (supra), thus, clarifies that an order, which substantially affects the rights of the parties, cannot be regarded as an 'interlocutory order'. in madhu limaye v. state of maharashtra : 1978crilj165 , a three judge bench of the supreme court held that an order rejecting a plea of an accused on a point, which would have, if accepted, concluded a particular proceeding, cannot be held to be an interlocutory order. in v.c. shukla v. state : 1980crilj690 , the supreme court held that the term 'interlocutory order', which occurs in the code of criminal proceeding, needs to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and that revisional jurisdiction of the high court or of the sessions judge would be attracted if an order is not purely interlocutory, but intermediate or quasi final.17. the fallout of the above discussion is that when a person, who is proceeded against under section 145 of the code, raised a plea, which would have, if accepted, concluded the proceeding, such a plea cannot be regarded, in the light of the decision in madhu limaye (supra), an interlocutory order.18. it needs to be pointed out that between the commencement of a judicial or quasi-judicial proceeding and its end, numerous types of orders are passed on various applications. these orders may or may not finally determine the action or proceeding. some of the orders may, however, finally determine even interlocutory applications or proceedings. such orders are final in so far as such interlocutory applications or proceedings are concerned. but not withstanding determination of interlocutory application or proceedings, the order, in essence, remains still an interlocutory order vis-a-vis the main proceedings. all the orders passed between the commencement and final decision or determination of an action or proceeding will be, generally, regarded as interlocutory orders. but when such an order is an order of moment and affects valuable rights of the parties, it cannot be regarded as an interlocutory order. interlocutory orders are orders, which are step in aid to the main proceedings. however, those orders, which may be regarded as interlocutory, but decide the matter of moment and affect vital and valuable rights of the parties, are not to be treated as interlocutory orders. a preliminary order, under section 145(1), is the first order, whereby a proceeding is initiated. a preliminary order is, thus, nothing, but the foundation of the jurisdiction of the magistrate, who draws the proceeding. such an order cannot be regarded as interlocutory order, for, it can always be tested as to whether foundation of jurisdiction exercised by a judicial authority is legally sustainable or not or whether the exercise of judicial or quasi-judicial power by an authority is or is not valid under the law. construed thus, it is clear that if a preliminary order is made under section 145 (1), when the magistrate, drawing such a proceeding, has no jurisdiction or when the conditions precedent for exercise of such jurisdiction do not exist, such an order, which affects valuable rights of the parties, cannot be termed or regarded as interlocutory order.19. in the present case, the very exercise of jurisdiction by the learned magistrate, under sub-section (1) of section 145, was challenged before the learned sessions judge. the power given to an executive magistrate, under sub-section (1) of section 145, is a power, which cannot be exercised arbitrarily and when the conditions precedent for passing such an order does not exist in a given case. in order to enable an executive magistrate to assume jurisdiction under sub-section (1) of section 145, necessary it is that there is a dispute with regard to any land, water or boundaries thereof and the dispute must be such, which is likely to cause breach of the peace. this apprehension of breach of the peace is one of the conditions precedent for assumption of jurisdiction under sub-section (1) of section 145. the breach of the peace, which sub-section (1) of section 145 envisages, is not breach of peace between the two parties. the dispute must be such, which involves people, in general. in other words, a private dispute is not amenable to the exercise of jurisdiction, under sub-section (1) of section 145, unless such a dispute affects the even tempo of life of the people in a given locality.20. logically, therefore, when a order is made, under sub-section (1) of section 145, without the conditions precedent for exercise of such jurisdiction being present, the passing of the order, drawing the proceeding, would be tantamount to assumption of jurisdiction, wherein no jurisdiction exists. we need to remember that when an order substantially affects the rights of the parties, such an order cannot be regarded as an interlocutory order. the drawing of a proceeding, under sub-section (1) of section 145, is an order of great moment and such an order substantially affects the rights of the parties. unless the conditions precedent for exercise of jurisdiction under section 145(1) exist in a given case, drawing of proceeding, under section 145(1), in such a case, would be wholly without jurisdiction and an order, which is wholly without jurisdiction, cannot be regarded as an interlocutory order. it is also of immense importance to note that an order under section 146 is not independent of a proceeding under section 145, for, it is only when a proceeding has been drawn under section 145 that the order of attachment can be made. this apart, an order of attachment can be withdrawn at any time if the magistrate is satisfied that likelihood of breach of peace no longer exists with regard to the subject of dispute. as an order of attachment cannot be passed without drawing a proceeding under section 145, it logically follows that when a preliminary order drawing a proceeding under section 145 (1) is challenged as an order without jurisdiction, there is no impediment, on the part of the revisional court, to revise in an appropriate case, such an order.what emerges from the above discussion is that the passing of a preliminary order, in exercise of jurisdiction, under sub-section (1) of section 145, is not an interlocutory order and in a given case, it is open to a sessions judge to set aside such an order in exercise of his jurisdiction under section 97 read with section 401 of the code.21. in view of the fact that a preliminary order is amenable to the exercise of revisional jurisdiction by a sessions judge, there can be no escape from conclusion that the impugned order, dated 24-8-2007, passed by the learned additional sessions judge, whereby the learned additional sessions judge has assumed revisional jurisdiction, cannot be said to be without jurisdiction or illegal. such an order needs no interference by the high court in exercise of its powers under section 482 of the code. it will be, now, for the learned additional sessions judge to determine if the order, dated 22-8-2007, was or was not, in the facts and circumstances of the present case, warranted.because of what have been discussed and pointed out above, this criminal petition fails, the same is not admitted and shall accordingly stand dismissed.

Judgment:

I.A. Ansari, J.

1. This petition, made under Section 482, Cr. P.C. (in short, 'the Code'), has raised a very important question of law and the question is this : Is an order passed by an Executive Magistrate drawing proceeding, under Sub-section (1) of Section 145 of the Code, revisable? This question, in turn, brings us to yet another question and the question is : Whether an order, passed, under Sub-section (1) of Section 145, an interlocutory order?

2. Before making endeavour to find answers to the questions posed above, appropriate it is that the facts leading to this petition are taken note of. The petitioner herein submitted, as first party, a petition to the Sub-Divisional Magistrate, Kamrup Metropolitan District, alleging, inter alia, thus : The petitioner is the lawful owner and possessor of the land described in the schedule to the said petition, which is hereinafter referred to as the 'disputed land.' The second party, who has no right, title or interest over the disputed land, broke the boundary wall standing on the land and tried to encroach upon and occupy the disputed land. The dispute between the parties has given rise to serious apprehension of breach of the peace and tranquillity. Based on this petition, which was supported by an affidavit, learned Sub-Divisional Magistrate, Kamrup Metropolitan District, passed an order, on 22-8-2007, drawing a proceeding under Section 145 of the Code in respect of the disputed land involving the parties aforementioned. Case No. 242(M)/2007 accordingly came into existence. By the same order, i.e., the order, dated 22-8-2007. aforementioned, learned Sub-Divisional Magistrate also directed attachment of the disputed land excluding the dwelling house standing thereon. Aggrieved by the order, dated 22-8-2007, and challenging the same on grounds, inter alia, that the very assumption of jurisdiction, under Sub-section (1) of Section 145, by the Sub-Divisional Magistrate was illegal, the second party to the said proceeding (i.e., the opposite party No. 1 herein) filed a revision under Section 397 read with Section 401 of the Code. This revision came to be registered as Criminal Revision No. 14/2007 and an order was passed therein, on 24-8-2007, by the learned Additional Sessions Judge (FTC) No. 4, Kamrup, Guwahati, admitting the revision and staying operation of the order, dated 22-8-2007, aforementioned.

3. Contending, now, that the very entertaining of the revision petition by the learned Additional Sessions Judge is without jurisdiction, the petitioner has impugned, in this petition, made under Section 482 of the Code, the order, dated 24-8-2007, aforementioned.

4. I have heard Mr. A. R. Sikdar, learned Counsel for the petitioner, and Mr. A. B. Choudhury, learned senior counsel, appearing on behalf of the opposite party No. 1. I have also heard Mr. B. B. Gogoi, learned Additional Public Prosecutor, Assam, who has appeared on behalf of the State.

5. It is submitted by Mr. Sikdar that the drawing of a proceeding, under Section 145(1) of the Code, is an interlocutory order and such an order, being interlocutory in nature, is not revisable. Considered thus, contends Mr. Sikdar, the order, dated 22-8-2007, aforementioned, whereby proceeding under Section 145(1) was drawn, is an interlocutory order and that such an order is, in the light of the provisions of Section 397(2) of the Code, not revisable and, hence, the learned Additional Sessions Judge committed serious error of law in entertaining the revision and in staying the proceeding.

6. Resisting the submissions made on behalf of the petitioner, Mr. Choudhury, learned senior counsel, contends that an order, under Sub-section (1) of Section 145, is not an interlocutory order, for, exercise of jurisdiction by a Magistrate, when he has no jurisdiction at all to draw such a proceeding, cannot be treated as an interlocutory order. It is also contended by Mr. Choudhury that in the facts and circumstances of the present case, the learned Executive Magistrate had no power to draw a proceeding under Sub-section (1) of Section 145 and, hence, the learned Additional Sessions Judge acted within the ambit of law, when he entertained the revision and stayed the proceeding. As far as learned Additional Public Prosecutor is concerned, his submission is that in the facts and circumstances of the present case, the order passed, under Sub-section (1) of Section 145, is in lawful exercise of jurisdiction and is, therefore, not revisable.

7. Before I come to the question as to whether an order passed under Sub-section (1) of Section 145 is or is not an interlocutory order, it is imperative that the scheme of Section 145 read with Section 146 is borne in mind. Section 145 appears under Chapter X of the Code, which reads, 'Maintenance of Public Order and Tranquility.' This chapter is divided into separate groups, Sections 145 and 146 fall under Group-D. Though the heading of the chapter, in any legislation, is not the sole criterion for determination of the scope of the provisions, which may be embodied in such a chapter, the fact remains that the heading of the chapter, in a piece of legislation, does reflect the legislative intent. A careful analysis of the various provisions contained in Chapter X would show that, this chapter, in substances, deals with maintenance of public order and tranquillity. In other words, a private dispute or a dispute, which has no bearing on public order and tranquillity, cannot be regarded as a dispute and such a dispute does not empower an Executive Magistrate to assume jurisdiction under Sub-section (1) of Section 145, which reads as under:

145(1). 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 officer 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 claims as respects of the fact of actual possession of the subject of dispute.

8. A close analysis of the provisions of Section 145 shows that the Magistrate is empowered to try a proceeding, under Sub-section (1) of Section 145, if he is satisfied from a report of a police officer or upon other information that there is a dispute likely to cause breach of the peach exists concerning any land or water or the boundaries thereof, within his local jurisdiction. A careful reading of Section 145(1), also shows that on receipt of report or information as aforementioned, the Magistrate 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 claims as respects the fact of actual possession of the subject of dispute.

9. The provisions, contained in Sub-section (1) of Section 145, show that the source of information, for the purpose of drawing a proceeding under Sub-section (1) of Section 145, is not material; what is material is that the Executive Magistrate must feel satisfied about existence of a dispute as envisaged in Section 145(1) and must assign the grounds of his being so satisfied. This part, the dispute must relate to land, water or boundary thereof and the dispute must be such, which is likely to cause breach of the peace. The expression 'breach of the peace' does not really mean mental peace of the parties concerned. Disturbance of public order is distinct from actions of the individuals, which do not disturb the society to the extent of vibrating a general disturbance of public tranquillity. Public order means the even tempo of life of the community in a given locality. When one party, illegally or forcibly, occupies land of another party, the people, in general, or even neighbours of such a party may be shocked and mentally disturbed, but life of the community may still move on keeping pace with the even tempo of life of the community. If, by such act of dispossession, even tempo of life of the community is disturbed or jeopardized, it may become a case of disturbance of public order and tranquility. The acts of a private party, which affect personal rights of another party do not disturb the even tempo of the society, for, such feuds are private feuds. Basis of jurisdiction under Section 145(1) is a dispute, which is likely to cause a breach of the peace. It is not a breach of mental peace of the parties to apprehend danger of breach in the locality. Ordinarily, a person, dispossessed from his land, shall sue for recovery of the immovable property under the provisions of the Specific Relief Act and if there is a threat to his dispossession, he should institute a suit to obtain injunction. These are, ordinarily, forum for establishing rights of the litigants. A proceeding under Section 145 is, therefore, an extra-ordinary provision to grant extra ordinary relief, when there is likelihood of breach of the peace in a given locality. (See Maqbul Hussain v. Syadur Rahman reported in (1986) 2 GLR 167. The final order of the Magistrate is, however subject to the decision of the civil Court. It is, therefore, clear that in respect of private dispute between two parties, which does not disturb law and order or occasion breach of the peace in the locality, the forum for obtaining relief is the civil Court of competent jurisdiction and not an Executive Magistrate's Court. Ram Sumer Puri Mahant v. State of UP : AIR1985SC472 , discourages drawing of proceedings, under Section 145, as far as possible. In fact, Ram Sumer Puri Mahant (supra) lays down that the Magistrate should initiate a proceeding under Section 145 only when the essential elements of the provisions, contained in Section 145, are found present in a given case.

10. What emerges from the above discussion is that exercise of power under Section 145 (1) cannot be arbitrary and the provisions of Section 145 cannot be invoked unless the conditions precedent prescribed therein are available.

11. Coupled with the above, what also needs to be noted is that an order of attachment can be passed by an Executive Magistrate in exercise of his powers under Sub-section (1) of Section 146 if upon drawing a proceeding under Sub-section (1) of Section 145, the Magistrate considers the case to be one of emergency. This position of law is not in dispute. That an order of attachment, under Section 146(1), is an interlocutory order is, in fact, not in dispute. Thus, an order of attachment cannot be made unless a proceeding under Section 145 is pending. An order of attachment under Section 146(1) is inherently temporary in nature as the order may be withdrawn, at any time, by the Magistrate if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. An order, under Section 146(1), is nothing, but a step-in-aid in the pending proceeding under Section 145. An order of attachment is, thus, neither a final order nor a quasi final order. In fact, by attachment, the subject of dispute becomes custodia legis. (See Deokuer v. Sheo Prasad : [1966]1SCR580 . Since an order of attachment is revocable at any stage of the proceeding, it becomes inherently temporary in nature and is, therefore, regarded as an interlocutory order. (See Indrapuri Primary Co-operative Housing Society Ltd. and Anr. v. Sri Bhabani Gogoi reported in (1991)1 GLR 228 : 1991 Cri LJ 1765.

12. The limited question, therefore, which concerns us, in the present petition, is as to whether an order under Sub-section (1) of Section 145 is or is not an interlocutory order, for, if such an order is held to be interlocutory order, the learned Additional Sessions Judge must be held to have acted beyond his jurisdiction inasmuch as the revisional jurisdiction cannot, in the light of the provisions of Sub-section (2) of Section 397, be exercised in respect of an interlocutory order. Conversely, if an order passed, under Sub-section (1) of Section 145, commonly known as preliminary order, is not to be treated as an interlocutory order, then, a Sessions Judge must be held to have jurisdiction to revise such an order if the facts and circumstances of the case so warrant.

13. To find answer to the question as to whether a preliminary order, passed under Sub-section (1) of Section 145, is or is not an interlocutory order, one has to, first, ascertain as to whether every order passed, during the course of a proceeding, can or cannot be regarded as an interlocutory order. The question, therefore, is as to what an interlocutory order means?

14. The revisional jurisdiction, it may be noted, is exercisable by both the High Court as well as the Sessions Judge. Section 397(1) empowers the High Court as well as Sessions Judge to 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 as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceeding 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, he be released on bail or on his own bond pending the examination of the record.

15. From a careful reading of Section 397(1), it becomes clear that revisional jurisdiction is exercisable for the purpose of correcting any finding, sentence or order or for the purpose of removing any illegality in any finding, sentence or order or for the purpose of setting aside the impropriety with which may suffer any finding, sentence or order. Such being the object of the revisional jurisdiction, it is clear that the revisional jurisdiction aims at correcting miscarriage of justice arising from misconception of law or of procedure. In effect, thus, the revisional jurisdiction aims at keeping the inferior Courts within the bounds of law. No wonder, therefore, that in Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr. : 1999CriLJ1620 , the Apex Court observed, '6. Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner.'

16. From a careful reading of Section 397(2), it becomes clear that Section 397(2) bars exercise of revisional jurisdiction in respect of interlocutory orders'. The idea behind putting an embargo on the exercise of revisional jurisdiction against interlocutory orders' is the legislative intent to curtail delay in the disposal of the proceedings covered by the Code. The expression 'interlocutory order' has not been defined in the Code. However, an 'interlocutory order is not converse of the final order nor will it be correct to say that every order passed, which is not final, is an 'interlocutory order'- be such an order, an order, whereby a criminal proceeding is initiated, or be such an order, an order, which is passed during the course of such a proceeding. If the expression 'interlocutory order' is strictly construed without considering the nature of the order, the effect would be that every order, which has not determined or concluded a proceeding, would be an 'interlocutory order'. Discarding such a narrow meaning, which had been sought to be attributed to the expression 'interlocutory order', occurring under Section 397(2), it has been pointed out, in Amarnath v. State of Haryana : 1977CriLJ1891 , by the Apex Court that the expression interlocutory order', occurring in Section 397(2), has been used in a restricted sense and not in a broad or artistic sense and denotes only those orders, which are interim or temporary in nature and do not decide or touch upon the important rights of the parties. The decision in Amarnath (supra), thus, clarifies that an order, which substantially affects the rights of the parties, cannot be regarded as an 'interlocutory order'. In Madhu Limaye v. State of Maharashtra : 1978CriLJ165 , a three Judge Bench of the Supreme Court held that an order rejecting a plea of an accused on a point, which would have, if accepted, concluded a particular proceeding, cannot be held to be an interlocutory order. In V.C. Shukla v. State : 1980CriLJ690 , the Supreme Court held that the term 'interlocutory order', which occurs in the Code of Criminal Proceeding, needs to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and that revisional jurisdiction of the High Court or of the Sessions Judge would be attracted if an order is not purely interlocutory, but intermediate or quasi final.

17. The fallout of the above discussion is that when a person, who is proceeded against under Section 145 of the Code, raised a plea, which would have, if accepted, concluded the proceeding, such a plea cannot be regarded, in the light of the decision in Madhu Limaye (supra), an interlocutory order.

18. It needs to be pointed out that between the commencement of a judicial or quasi-judicial proceeding and its end, numerous types of orders are passed on various applications. These orders may or may not finally determine the action or proceeding. Some of the orders may, however, finally determine even interlocutory applications or proceedings. Such orders are final in so far as such interlocutory applications or proceedings are concerned. But not withstanding determination of interlocutory application or proceedings, the order, in essence, remains still an interlocutory order vis-a-vis the main proceedings. All the orders passed between the commencement and final decision or determination of an action or proceeding will be, generally, regarded as interlocutory orders. But when such an order is an order of moment and affects valuable rights of the parties, it cannot be regarded as an interlocutory order. Interlocutory orders are orders, which are step in aid to the main proceedings. However, those orders, which may be regarded as interlocutory, but decide the matter of moment and affect vital and valuable rights of the parties, are not to be treated as interlocutory orders. A preliminary order, under Section 145(1), is the first order, whereby a proceeding is initiated. A preliminary order is, thus, nothing, but the foundation of the jurisdiction of the Magistrate, who draws the proceeding. Such an order cannot be regarded as interlocutory order, for, it can always be tested as to whether foundation of jurisdiction exercised by a judicial authority is legally sustainable or not or whether the exercise of judicial or quasi-judicial power by an authority is or is not valid under the law. Construed thus, it is clear that if a preliminary order is made under Section 145 (1), when the Magistrate, drawing such a proceeding, has no jurisdiction or when the conditions precedent for exercise of such jurisdiction do not exist, such an order, which affects valuable rights of the parties, cannot be termed or regarded as interlocutory order.

19. In the present case, the very exercise of jurisdiction by the learned Magistrate, under Sub-section (1) of Section 145, was challenged before the learned Sessions Judge. The power given to an Executive Magistrate, under Sub-section (1) of Section 145, is a power, which cannot be exercised arbitrarily and when the conditions precedent for passing such an order does not exist in a given case. In order to enable an Executive Magistrate to assume jurisdiction under Sub-section (1) of Section 145, necessary it is that there is a dispute with regard to any land, water or boundaries thereof and the dispute must be such, which is likely to cause breach of the peace. This apprehension of breach of the peace is one of the conditions precedent for assumption of jurisdiction under Sub-section (1) of Section 145. The breach of the peace, which Sub-section (1) of Section 145 envisages, is not breach of peace between the two parties. The dispute must be such, which involves people, in general. In other words, a private dispute is not amenable to the exercise of jurisdiction, under Sub-section (1) of Section 145, unless such a dispute affects the even tempo of life of the people in a given locality.

20. Logically, therefore, when a order is made, under Sub-section (1) of Section 145, without the conditions precedent for exercise of such jurisdiction being present, the passing of the order, drawing the proceeding, would be tantamount to assumption of jurisdiction, wherein no jurisdiction exists. We need to remember that when an order substantially affects the rights of the parties, such an order cannot be regarded as an interlocutory order. The drawing of a proceeding, under Sub-section (1) of Section 145, is an order of great moment and such an order substantially affects the rights of the parties. Unless the conditions precedent for exercise of jurisdiction under Section 145(1) exist in a given case, drawing of proceeding, under Section 145(1), in such a case, would be wholly without jurisdiction and an order, which is wholly without jurisdiction, cannot be regarded as an interlocutory order. It is also of immense importance to note that an order under Section 146 is not independent of a proceeding under Section 145, for, it is only when a proceeding has been drawn under Section 145 that the order of attachment can be made. This apart, an order of attachment can be withdrawn at any time if the Magistrate is satisfied that likelihood of breach of peace no longer exists with regard to the subject of dispute. As an order of attachment cannot be passed without drawing a proceeding under Section 145, it logically follows that when a preliminary order drawing a proceeding under Section 145 (1) is challenged as an order without jurisdiction, there is no impediment, on the part of the revisional Court, to revise in an appropriate case, such an order.

What emerges from the above discussion is that the passing of a preliminary order, in exercise of jurisdiction, under Sub-section (1) of Section 145, is not an interlocutory order and in a given case, it is open to a Sessions Judge to set aside such an order in exercise of his jurisdiction under Section 97 read with Section 401 of the Code.

21. In view of the fact that a preliminary order is amenable to the exercise of revisional jurisdiction by a Sessions Judge, there can be no escape from conclusion that the impugned order, dated 24-8-2007, passed by the learned Additional Sessions Judge, whereby the learned Additional Sessions Judge has assumed revisional jurisdiction, cannot be said to be without jurisdiction or illegal. Such an order needs no interference by the High Court in exercise of its powers under Section 482 of the Code. It will be, now, for the learned Additional Sessions Judge to determine if the order, dated 22-8-2007, was or was not, in the facts and circumstances of the present case, warranted.

Because of what have been discussed and pointed out above, this Criminal Petition fails, the same is not admitted and shall accordingly stand dismissed.