Allahabad High Court
Mohammad Layeeq And 3 Others vs State Of U.P. And 3Others on 30 November, 2022
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- APPLICATION U/S 482 No. - 36263 of 2022 Applicant :- Mohammad Layeeq And 3 Others Opposite Party :- State Of U.P. And 3others Counsel for Applicant :- Imtyaz Ahmad,Shakeel Ahmad Azmi Counsel for Opposite Party :- G.A.,Arun Kr. Soni Hon'ble Dr. Gautam Chowdhary,J.
Heard learned counsel for the applicants, Sri Arun Kumar Soni, learned counsel for the opposite party no.2, learned A.G.A. for the State and perused the material on record.
The present application under Section 482 Cr.P.C. has been filed for quashing the Judgement and order dated 30.07.2022 passed by learned Additional Sessions Judge, Court No.1, Auraiya in Criminal Revision No.38 of 2021 (Hari Mohan and another Vs. Mohammad Layeeq alias Banti and others), whereby revision filed by the opposite party nos.2 to 4 has been allowed setting aside the order dated 22.10.2021 passed by learned Magistrate under Section 145 (1) and 146 (1) Cr.P.C.
Learned counsel for the applicants submits that on account of dispute with regard to the land in question, the applicant no.1 moved an application for initiating proceedings under Section 145 (1)Cr.P.C., and 146 (1) Cr.P.C. in which report was called and the learned Magistrate after perusing the report has initiated proceedings under Section 145 (1) Cr.P.C. as well as 146 (1) Cr.P.C. vide order dated 22.10.2021 against which, the opposite party no.2 and 3 filed a criminal revision before the learned revisional Court and the learned revisional Court without considering the fact that there was breach of peace between the parties passed the order impugned observing therein that the learned Magistrate has no jurisdiction to pass the order. He further submits that as per provision of Code of Criminal Procedure, it is the learned Magistrate, who after satisfying with report may be initiate proceedings under Section 145 or 146 Cr.P.C. and therefore the impugned order is illegal, arbitrary and is liable to be quashed by this Court.
On the other hand, learned counsel for the private opposite parties as well as learned A.G.A. for the State has submitted that though learned Magistrate has committed an illegality, while passing the order dated 22.10.2021 thus the opposite party nos. 2 and 3 filed a criminal revision, which has been legally allowed by the learned revisional Court and therefore the impugned order is perfectly legal, just, and proper, which calls for no interference by this Court in exercise of powers conferred under Section 482 Cr.P.C.
This Court in the matter of Revati Raman Vs. State of U.P. and others passed in Criminal Revision No. 6130 of 2006 has held that proceedings under Section 146 (1) Cr.P.C. can be bracketed only within the purview of an order, which is interlocutory in nature and not as an order which is final hence revision under Section 397 (2) Cr.P.C. is barred against such an order.
In view of above, the impugned order dated 30.07.2022 passed by learned revisional Court is set aside.
From perusal of the record and order passed by the Magistrate concerned it appears that the Magistrate concerned has passed the order on 22.10.2021 for attaching the property in dispute under section 146 Cr.P.C. which is quoted below:
"146. Power to attach subject of dispute and to appoint receiver.-(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 withdraw 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."
However, in case the opposite party nos. 2 and 3 are not satisfied with the same, they may move an application before the Magistrate concerned for revocable of the same, as Section 146 Cr.P.C. itself provides that any order under Section 146(1) Cr.P.C. can be withdrawn by the Magistrate itself after having full satisfaction. In case such an application is moved, the same shall be heard and disposed of expeditiously by the Magistrate concerned.
With this observation, this application is disposed of.
Order Date :- 30.11.2022 S.Ali