1. This is an application by which the Sub-divisional Judicial Magistrate, Arrah has directed the petitioner to produce the two daughters of the complainant for being delivered to the latter in the following circumstances. It appears that a complaint was filed by the opposite party to the effect that she was residing at her father's place and that she had gone to Arrah and during her absence her two daughters, one aged about 13 years and the other about 7 years, had been kidnapped by the petitioner, who happens to be the father's father of the aforesaid two girls. The complaint aforesaid was lodged against the petitioner and his two sons, in other words the two uncles of the girls aforesaid. During the pendency of the proceeding the complainant made a request for issue of a search warrant. The petitioner, however, produced the two girls in court of the Sub-divisional Judicial Magistrate, who took down the statement of the elder girl and the latter refused to go and live with her mother and expressed her willingness to live with the petitioner. As a result, by his order dated 30th of March, 1976 the Magistrate directed the girl to remain in the custody of the petitioner on his executing a bond. Subsequently the complainant filed a petition for the custody of the girls on the ground that she was their natural guardian. The elder girl was examined again and the parties were heard. As a result, the Magistrate passed the impugned order.

2. Counsel for the petitioner has urged that the learned Magistrate has erred in allowing the custody, because the elder girl had clearly stated that she did not wish to live with her mother but with the grandfather. Secondly, that the Magistrate has passed the aforesaid order merely because under the Hindu Minority and Guardianship Act the mother happens to be the natural guardian of the girls without considering that it was in the interest and welfare of the girls that they should have been allowed to stay with their grandfather.

3. On behalf of the opposite party however, it has been urged that the present application is not maintainable first because it is directed against an interlocutory order within the meaning of Section 397(2) of the Code of Criminal Procedure, 1973 and secondly because a similar application having been filed before the Sessions Judge the present application is barred by Section 397(3) of the Code. Next it has been urged that in view of the fact that the mother is the natural guardian the court below has rightly directed the girls to be delivered to her custody.

4. First I propose to deal with the question of maintainability. With regard to the application before the Sessions Judge it has been stated on oath in the present application that a petition in revision had been filed before him but that had been withdrawn and permission to withdraw the petition was granted by the learned Sessions Judge. It is thus, obvious that the application was not adjudicated upon. By granting permission to withdraw the application it is obvious that the court did not entertain the application. It will be relevant at this stage to read the provisions of sub-section (3) of Section 397 which is as follows:

“If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.”

5. Reading the provision of Section 397 it is obvious that the High Court and the Sessions Judge both having concurrent jurisdiction in respect of the matter of revision the legislature naturally laid down that if the matter has been decided by one of the two courts another application by the same person ought not on general principles be entertain able by the other court. There was a similar provision in the earlier Code of 1898 contained in sub-section (4) of Section 435. The provisions in sub-section (3) do not therefore, bring in anything new on the statute.

6. Counsel for the opposite party has however, urged that the mere fact that an application was filed before the Sessions Judge irrespective of the fact that it was allowed to be withdrawn, would result in the application of the bar contained in sub-section (3) of Section 397. Stress has been laid on the wordings of the sub-section which says “if an application under this section has been made”. I am unable to accept this contention. The argument does not appeal to my common sense. The intention of the Legislature in enacting the provision is obviously to avoid conflict of opinion between two courts of concurrent jurisdiction and to avoid one court of concurrent jurisdiction acting as if it were a court of appeal against the decision of the other. The words cannot in my opinion, relate only to the factum of filing the application. The words in its proper context must be deemed to mean further than what literally would be the meaning of the word namely, that the application shall not only be made but en-tertained and adjudicated upon. Unless there is a decision on the point the legislature could not have intended to make the mere filing of the application a bar. In the view which I have taken I am supported by a decision of a Division Bench of the Madras High Court in the case of Narayana Naik v. Emperor reported in AIR 1931 Mad 772 (1) : (33 Cri LJ 14). The proposition is so obvious that it hardly needs any authority. The contention of the counsel in this respect must therefore, be rejected and the application cannot be held to be non-maintainable on the mere ground that a similar application had been only filed before the Sessions Judge though withdrawn.

7. The second bar pleaded is one under Section 397(2) of the said Code on the ground that the present order is one of an interlocutory nature. Counsel for the parties have not been able to cite any decision directly on the point and the case is said to be one of first impression. True perhaps, it is for the first time that in the Code of Criminal Procedure the words “interlocutory order” have been introduced. The question which arises first is what is interlocutory order. The point has been set at rest in so far as interlocutory orders envisaged by the Civil Procedure Code are concerned. The term interlocutory has not been defined in Section 2 which is the definition section in the Code. It is, however, a well settled principle of construction of statute that certain words and phraseology which have received a widely accepted meaning unless it is repugnant to the context in which it has been used in a new statute should be understood to mean the same thing. It will be unnecessary to refer to a number of decisions given in respect of civil cases defining the term “interlocutory order.” An ‘interlocutory order’ has been understood to mean an order made during the progress of a suit upon some incidental matter which arises out of the proceedings. It is undoubtedly not a final determination of the rights of the parties in the suit. It must be an order passed at an intermediate stage of a proceeding and it may be for advancing the proper decision of the subject-matter of the dispute. In Jowitt's Dictionary of English Law it is said at page 995 a proceeding in an action is said to be interlocutory when it is incidental to the principal object of the action, namely the judgment Thus, interlocutory applications in an action include all steps taken for the purpose of assisting either party in the prosecution of his case, whether before or after final judgment, of protecting or otherwise dealing with the subject-matter of the action before the rights of the parties are finally determined or of executing the judgment when obtained, Such are applications for time to take step (e.g, to deliver a pleading), for discovery, for an interim injunction, for the appointment of a receiver, for obtaining a garnishee order, etc.” In Stroud's Judicial Dictionary, Third Edition at page 1495 examples of “interlocutory orders” are given “Interlocutory order” (Section 25(2), Judicature Act, 1873 36 and 37 Vict, C. 66) is not confined to an order made between writ and final judgment, but means an order cither than filial judgment……

8. In the case of the Central Bank of India v. Gokul Chand (AIR 1967 SC 799) the learned Judges of the Supreme Court while considering the meaning of Section 38(1) of the Delhi Rent Control Act, 1958 and orders, which could be passed under Sections 36 and 37 thereof for summoning of witnesses, discovery, production and inspection of documents, issue of commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of the documents or the relevancy of a question in this connection observed that “all these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding, they regulate the procedure only and do not affect any right or liability of the parties.”

9. It is thus, clear beyond doubt that an interlocutory order is one which does mot amount to the final adjudication of a matter in dispute and relates only to an incidental or ancillary matter arising during the proceeding.

10. The question thus, is whether the order in the present case is of an interlocutory nature. It will appear that during the course of the proceeding an application was filed for issuance of warrant for the production of the two girls. Obviously, this was done under Section 97 of the Code (which corresponds to Section 100 of the old Code of Criminal Procedure). The present case was one accusing the opposite party of having committed the offence of kidnapping. The final judgment would, therefore be with regard to the question as to whether the petitioner and other cot accused have committed the offence alleged. The search and the recovery is a matter incidental to the proceeding. The question of custody of the persons recovered also, in my view, is obviously a matter which is incidentally arising in the proceeding. It will appear from the reading of Section 97 that the Magistrate is entitled to pass such order as he considers fit and proper in respect of the custody of the persons recovered. Obviously this is an order passed for the purpose of the proceeding. I have thus, not the slighest doubt that the orders passed on an application under Section 97 regarding the custody of the persons found is an interlocutory order.

11. Coming now to Section 397(2) of the Code it reads thus:—

“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.”

12. My attention has been drawn by Counsel for the parties to some decisions, where the questions discussed were whether certain orders passed In criminal cases amounted to interlocutory orders. In the case of Ramkishun Agrawalla v. State through Circle Officer, Nirsa (1975 BBCJ 555) the question raised was whether an order initiating proceeding under Section 14(1) of the Code amounted to interlocutory order. J. Narain, J. held that it is not an interlocutory order as it is meant to be the very foundation of the proceeding. In another case before the same learned Judge the question arose whether the order passed by the Sub-divisional Magistrate in respect of articles seized being an interlocutory order could be revised in spite of Section 397(2) of the Code. The learned Judge held that since the order was without jurisdiction it could be revised. Contrary view on this point has been taken in the case of Sant Lal Nagrath v. Krishan Lal Suri, (1976 Cri LJ 215) (Delhi) which does not appear to have been placed before his Lordship. In yet another case before this court in Bindeshwar Singh v. Rambaran Singh, (1975 BBCJ 601) the question arose whether an order passed under Section 116(3) of the Code amounted to an interlocutory order and could be revised. C.N Tiwary, J. held that the order under Section 116(3) being as effective as an order under Section 107 it cannot be treated as an interlocutory order within the meaning of Section 397(2) of the Code.

13. There are some other cases of other courts, which have also been cited at the Bar. In the case of Bhupindra Kumar Bhatnagar v. State, (1975 Cri. LJ 1185 (Delhi)) a learned single Judge of the Delhi High Court held that an order framing a charge is an interlocutory order and thus, not revisable in view of Section 397(2). In the case of Dhola v. State, (1975 Cri LJ 1274 (Raj)) the learned Chief Justice of the Rajasthan High Court sitting singly held that an order granting or refusing bail is essentially an interlocutory order. In the case of Sant Lal Nagrath v. Krishan Lal Suri, (1976 Cri LJ 215) (Delhi) a learned single Judge of the Delhi High Court held that an order under Section 204 of the old Code of 1898 must be held to be an interlocutory order and the bar in Section 397(2) applies to it. The learned Judge went on further to hold that even if such an order has been challenged on the ground of want of jurisdiction it would still remain an interlocutory order and could not be revised. Another learned single Judge of the Andhra Pradesh High Court in the case of Budaraju Seshagiri Rao v. T.V Sarma, (1976 Cri LJ 902) also held that the order of Magistrate taking cognizance of a case is an interlocutory order. In yet another case an other learned single Judge of the High Court of Himachal Pradesh in the case of State of Himachal Pradesh v. S. Harbans Singh, (1976 Cri LJ 894) held that an order of discharge of an accused of an offence is not an interlocutory order.

14. All the aforesaid decisions Have been given by learned single Judges of different High Courts including our own. They however, related to orders different from the one in the instant case and I am not called upon to express my own opinion on the questions decided in those cases.

15. The decisions aforesaid are, therefore, of no avail for the decision of the point at issue.

16. The only case, which I have been able to lay my hands upon, which is relevant to the present discussion, is in the case of Imperator v. Piru reported in (1909) 10 Cri LJ 219 (Sind). Here in this case an order had been passed under Section 100 of the Criminal Procedure Code of 1898 (as in the present case under the corresponding section). The argument on behalf of the crown was that the Magistrate's order passed regarding the custody of the person recovered was an interlocutory order and no interference was called for. It must be borne in mind that there was no provision in the old Code similar to that in Section 397(2) of the present Code. The learned Judicial Commissioner did not say any thing explicitly as to whether the order was interlocutory or not but decided to interfere with the order passed by the Magistrate. The decision is thus, of not much avail Be that as it may, I have come to my own conclusion that the order is of an interlocutory nature and I venture to think that no two opinions are possible on the point The objection raised by the learned counsel by the opposite party must therefore, be upheld.

17. Even if I were to look into the case on its merit I would not have allowed this application for the simple reason that the Magistrate has ordered the girls to be given to the custody of the mother. The allegations which are made against the mother in the application for revision do not seem to have been made before the Magistrate and they are all questions of facts in respect of the suitability of the mother acting as the natural guardian of the two girls. Further in view of the fact that the elder girl is aged only 13, her wishes in the matter of her custody would make no difference and the natural guardian would still be entitled to her custody. The emphasis laid on this point by the petitioner is therefore of no avail. In the absence of any finding of the court below that the mother was not a suitable person to have the custody of the children the Magistrate is not wrong in holding that the mother being the natural guardian, should have their custody. If the petitioner has a grievance he ought to take recourse before the proper court for an order that the mother is not a suitable person, who should have the custody of the children. The present application is, therefore, misconceived even on merit. In the result this application is dismissed.

18. Application dismissed.