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. The contention put forward is that the order passed by the judicial magistrate, Second class in crl. M. P. 2153 of 1975 is an interlocutory order and as such, Crl. R. P. 23 of 1975 mentioned above should not have been entertained by the sessions judge. Whether it is an interlocutory order is the point for decision in this revision petition.

4. An interlocutory order is not defined in the code and, Therefore, The point has to be decided on general principles. The interpretation given in law lexicon by sri. P. R aiyar to the words 'interlocutory order' is given below:

"interlocutory order" an interlocutory order is one which is made pending the cause and before a final hearing on the merits. '

"an interlocutory order is made to secure some end and purpose necessary and essential to the progress of the suit, And generally collateral to the issues formed by the pleadings and not connected with the final judgment."

"interlocutory order", Is not necessarily confined to an order made between writ and final judgment but it means an order other than a final order or judgment (smith v. Cowell, 6 q b. D. 75). "

5. 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.

6. In state of orissa v. Madan gopal (air. 1952 sc. 12) the matter related to annulment of certain leases by the state government. Apprehending that the state government might annul the leases before the expiry of the period of notice under s. 80 cpc., The respondents filed a writ petition and a mandamus was granted by the high court restraining the government from taking action till the filing of the suit. In an appeal against the order, A preliminary objection was raised against the maintainability of the appeal and it was contended that the order was not final as the main dispute between the parties remained to be decided in the proposed suits. It was held that the order passed disposed of the petition finally as nothing further remained in respect of the petition and, Therefore, The appeal was maintainable.

7. In ramesh v. Gendalal (air. 1966 sc. 1445) an application for special leave was filed against the order of the high court of bombay dismissing a petition filed under art. 226 and 227 of the constitution challenging the appellate order of the commissioner in a proceeding under the madhya pradesh

abolition of proprietary rights (estates, Mahals and alienated lands) act, 1950. The commissioner had set aside the order of the claims officer discharging a claim. Objection was raised that an order dismissing summarily a petition under art. 226 of the constitution is not a judgment, Decree or final order from which an appeal could properly be brought under art. 133 of the constitution. It was argued that as the order said nothing about the merits and did not finally put an end to the controversy it could not be regarded as final. The supreme court observed:

"the answer to the question whether the order is final or not will not depend on whether the controversy is finally over but whether the controversy raised before the high court is finally over or not. If it is, The order will be appealable provided the other conditions are satisfied, Otherwise not.

the interpretation of the expression 'final order' came up again in mohanlal v. State of gujarat (air. 1968 s. C. 733). After an enquiry under s. 476 cr. P. C. A complaint was ordered to be filed by the magistrate against the appellant in the case for offences under s. 205,467 and 468 read with s. 114 ipc. An appeal was filed against the order. The additional sessions judge who disposed of the appeal held that the complaint was justified only in respect of an offence under s. 205 read with s. 114 i. P. C the high court, When called upon to revise the order, Refused to invoke the revisional jurisdiction. But a certificate was issued under s. 134 (1) (c) of the constitution. Before the supreme court preliminary objection was raised that the order dismissing the revision petition was not final. Shelat j., Speaking on behalf of the majority of the judges observed:

"when the magistrate ordered the filing of the complaint against the appellant, The parties to that controversy were the state and the appellant and the controversy between them was whether the appellant had committed offence charged, Against him in that complaint. The appeal filed by the appellant before the additional sessions judge was against the order filing the complaint, The controversy therein raised being whether the magistrate was justified in filing it, That is to say, Whether it was expedient in the interest of justice and for the purpose of eradicating the evil of false evidence in a judicial proceeding before the court. The controversies in the two proceedings were thus distinct though the parties were the same. When the additional sessions judge held that the complaint was justified in respect of the offence under s. 205 read with s. 114 and was not justified in respect of the other offences his judgment in the absence of a revision by the state against it finally disposed of that part of the controversy, I. E., That the complaint in respect of offences under s. 467 and 468 read with s. 114 was not justified. When the appellant filed revision in respect of the complaint for the remaining offence under s. 205 read with s. 114 the single judge of the high court dismissed that revision. His order of dismissal disposed of that controversy between the parties and the proceeding regard ing that question as to whether the complaint in that regard was justified or not was finally decided. As observed in 1966 - 3 scr: 198 = (air. 1966 sc. 1445) (supra) the finality of that order was not to be judged by co - relating that order with the controversy in the complaint, Viz., Whether the appellant had committed the offence charged against him therein. The fact that the controversy still remained alive is irrelevant. It must consequently be held that the order passed by the high court in the revision filed by the appellant was a final order within the meaning of art. 134 cl) (c).

the ratio of the above rulings is helpful in deciding the issue in this revision petition. The relief claimed in crl. M. P. 2153/75 was for releasing the cow and the calves on kychit to the complainant pending disposal of the case while the relief claimed in crl. M p. 2151/75 filed by the second respondent was for the return of the cow and the calves to her as they belonged to her and were taken away from her possession. The

order in crl. M. P. 2153/75 being an order for interim custody is no doubt an interlocutory order. But the order in crl. M. P. 2151 of 1975 stands on a different footing. The second respondent claims the cow and the calves in her own right and is not interested in the controversy between the petitioner and the first respondent or the ultimate disposal of the complaint. She has to establish her claim independently of the complaint. It is true that since a cow and two calves have been included in the subject matter of the theft, Crl. M p. 2151 of 1975 if allowed may influence the the final disposal of the complaint. But that is no ground for co - relating the order therein with the complaint for deciding whether it is an interlocutory, Order. The order in crl. M. P. 2151 of 1975 finally disposed of the case of the 2nd respondent and is therefore not an order falling under s. 397 (2) of the criminal procedure code. The revision petition before the sessions judge was therefore maintainable.

8. The second respondent's case is that the cow and the calves seized by the police do not fit in with the description given by the complainant. Under such circumstances, The magistrate should not have entrusted them,to the complainant before disposing of the claim put forward by the second respondent. The order passed by the sessions judge is, Therefore, Neither irregular nor improper. There is no merit in the revision petition. It is accordingly dismissed.

dismissed.