Allahabad High Court
Ramesh Kumar Sharma And Others vs State Of U.P.And Others on 4 February, 2011
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- APPLICATION U/S 482 No. - 1899 of 2011 Petitioner :- Ramesh Kumar Sharma And Others Respondent :- State Of U.P.And Others Petitioner Counsel :- R.V. Mishra Respondent Counsel :- Govt.Advocate Hon'ble Shri Kant Tripathi,J.
This is a petition under section 482 of the Code of Criminal Procedure (in short 'the Code') for quashing the order dated 9.12.2010, passed by the Additional Sessions Judge, Court No. 1, Allahabad, in criminal revision No. 235 of 2010, Ramesh Kumar Sharma and others vs. Mahesh Kumar Sharma and others.
2. Heard learned counsel for the applicants and learned AGA for the State and perused the record.
3. It appears that the respondents no.3 to 5 instituted a case under section 145 of the Code, in the court of Sub Divisional Magistrate, Meja, district Allahabad, which was registered as case no. 24 of 2010, Mahesh Kumar vs. Ramesh Kumar and others. The learned Executive Magistrate passed the preliminary order on 8.3.2010 and called upon the applicants as well as the respondents no. 3 and 5 to file their respective written statements by 29.3.2010. On the same day, the learned Executive Magistrate passed the attachment order under section 146 (1) of the Code.
4. The applicants moved an application dated 23.3.2010 for setting aside the ex-parte attachment order. The learned Executive Magistrate recalled the attachment order on the same day. Thereafter the respondents no.3 to 5 moved the application dated 29.3.2010 and prayed for recalling the order dated 23.3.2010. Accordingly the learned Executive Magistrate recalled the order dated 23.3.2010 vide his order dated 9.4.2010, consequently the attachment order revived.
5. The applicants filed the aforesaid revision against the impugned order dated 9.4.2010. The learned revisional court considered the matter and held that the order dated 9.4.2010 was an interlocutory order within the meaning of section 397 (2) of the Code and held that the revision was not maintainable.
6. The learned counsel for the applicants submitted that the disputed property was originally owned by one Surendra Narayan, who executed a will on 28.5.1978 in favour of the applicants, of which the father of the respondents no.3 to 5 was a witness. A mutation in favour of the applicants in the revenue record took place vide the order dated 31.7.1979 (Annexure no.2). After a lapse of twenty four years, the respondents no. 3 to 5 moved a restoration application, which was allowed and consequently the mutation order was recalled. The applicants preferred an appeal in the court of the Additional District Magistrate, Allahabad, against the recall of the mutation order. The learned Additional District Magistrate allowed the appeal and remanded the matter to the court concerned for a fresh decision in accordance with law. The learned counsel for the applicants submitted that the respondents no. 3 to 5 have also filed original suit no. 2674 of 2004, Suresh Sharma and others vs. Ramesh Sharma and others for injunction and cancellation of the Will deed. The civil suit is pending in the court of the Additional Civil Judge (Junior Division), Court no.6, Allahabad. It was further submitted that despite the pendency of the civil suit, the respondents no. 3 to 5 instituted the proceedings under section 145 of the Code and obtained not only the preliminary order dated 8.3.2010 but also the attachment order of the same day. The learned counsel for the applicants lastly submitted that in view of the judgment of the apex court in the cases of Ram Sumer Puri Mahant vs. State of U.P. & others, 1985 (1) ACC 427, Jhunamal @ Devandas vs. State of Madhya Pradesh & others, (1988) 4 SCC 452 and Amresh Tiwari vs. Lalta Prasad Dubey and another, 2000 ACJ 1611, the proceedings under section 145 of the Code was not maintainable and was liable to be dropped.
7. It may not be out of context to mention that the applicants neither filed any written statement in pursuance of the preliminary order nor moved any application before the Executive Magistrate for dropping the proceeding on the ground of pendency of the civil suit. They moved the application dated 23.3.2010 for recalling the attachment order dated 8.3.2010 mainly on the ground that the inquiry report dated 10.2.2010 of the Naib Tahsildar was incorrect and the applicants were in possession of the disputed property and there was no apprehension of breach of peace nor there was any report of the police in regard to the alleged apprehension of breach of peace. The attachment order was obtained by practicing fraud on the court. Learned Executive Magistrate recalled the ex-parte attachment order dated 8.3.2010 vide his order dated 23.3.2010 but on the application dated 23.3.2010 moved by respondent no. 3 to 5, passed the order dated 23.3.2010 and thereby restored the attachment order dated 8.3.2010. Learned Additional Sessions Judge, keeping in view the principles laid down by the Apex Court in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 and few other decisions, held that the order dated 9.4.2010 was an interlocutory order within the meaning of section 397(2) of the Code, therefore, the revision was not maintainable.
8. In view of the principles laid down by the Apex Court in Madhu Limaye's case (supra), and State vs. N.M.T. Joy Immaculate, AIR 2004 SC 2282 and Full Bench decision of this Court in Father Thomas vs. State of UP and another, 2011 (1) ADJ 333 (F.B.), the order dated 9.4.2010 reviving the attachment order seems to be an interlocutory order within the meaning of section 397 (2) of the Code, therefore, the revision before the revisional court was not maintainable. However, in Madhu Limaye's case (supra), the apex court has further propounded the principles that High Court can, in appropriate cases, exercise its inherent power conferred by section 482 of the Code even against interlocutory matters, if a case of abuse of process of any court is made out or exercise of inherent power is otherwise necessary for securing the ends of justice or to give effect any order under the Code. Therefore, the provisions of section 397(2) of the Code has not in any way restricted or curtailed the inherent power of the High Court in regard to the interlocutory orders. The touch stone for considering the question whether any particular order is an interlocutory order or not, as held by the Apex Court in the aforesaid decisions and other decisions, is that if the objections of the person questioning the order are upheld, the proceeding of the case would culminate, the order would be in the nature of final order. In Madhu Limaye's case (supra) the Apex Court held that the real intention of the legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in S. Kuppuswami Rao vs. The King, AIR 1949 FC 1, but, yet it may not be an interlocutory order ? pure or simple. Some kinds of order may fall in between the two. By applying a rule of harmonious construction the apex court further held that bar in sub-section (2) of section 397 of the Code is not meant to be attracted to such kinds of intermediate orders. In para 15 of the judgment in Madhu Limaye's case (supra), the apex court considered its previous judgment in Mohan Lal Magan Lal Thacker vs. State of Gujarat, AIR 1968 SC 733, and held that in the case of Mohan Lal Magan Lal Thacker (supra), four tests were culled out and one of them is "if the order in question is reversed would the action have to go on ?" If the answer is in affirmative, the order will not be an interlocutory order. Even in the case of State vs. Joy Immaculate (supra) the same proposition has been laid down.
9. If the order dated 9.4.2010 is tested on the aforesaid touchstone, the same would be merely an interlocutory order because if the applicants' objection against the said order is accepted, the proceeding instituted against them would not culminate. Moreover the recall order dated 9.4.2010 is neither a preliminary order under section 145 (1) of the Code nor an attachment order under section 146 (1) of the Code. It is purely an order passed on the application moved for restoring the attachment order. In view of the fact that the order dated 23.3.2010, whereby the attachment order was recalled, was passed ex-parte in absence of the respondents no. 3 to 5, the learned Executive Magistrate was justified in recalling that order vide his order dated 9.4.2010, therefore, on merit too the order dated 9.4.2010 seems to be perfectly correct but it may be mentioned that after recall of the order dated 23.3.2010, the applicants' application dated 23.3.2010 for recalling the attachment order has revived. Therefore, the learned Executive Magistrate is legally bound to consider that application on merit and pass appropriate order thereon.
10. The learned counsel for the applicants lastly submitted that in view of pendency of the civil suit the proceeding under section 145 of the Code was liable to be dropped but instead of dropping the proceeding, the learned Executive Magistrate has passed the preliminary order dated 8.3.2010. This submission does not seem to have any substance in view of the fact that the applicants, on appearance in pursuance of the preliminary order, neither filed any written statement nor objection to the preliminary order. They did not even move any application for dropping the proceeding on the ground of pendency of the civil suit, therefore,they can not be permitted to raise this point straightaway in the High Court. Hence they have to appear before the Executive Magistrate in pursuance of the preliminary order and to file written statements/objections in which they are free to raise the plea that the proceeding under section 145 of the Code are liable to be dropped. In case any such plea is raised, the same shall be considered and decided expeditiously as a preliminary issue before holding any further proceeding in the case.
11. In view of the reasons stated above, I do not consider it proper to interfere with the impugned order.
12. With the aforesaid observations, the petition is finally disposed of.
Order Date :- 4.2.2011 RKSh