Allahabad High Court
Kalloo And Ors. vs State Of U.P. And Anr. on 20 May, 1997
Equivalent citations: 1998CRILJ648
Author: D.C. Srivastava
Bench: D.C. Srivastava
ORDER D.C. Srivastava, J.
1. The above criminal revision and the writ petition have been filed challenging the order dated 10-4-1997 of Additional Sessions Judge III, Jaunpur hence both are proposed to be disposed of by a common judgment.
2. The facts essential for disposal of these two cases are that on police report, proceedings under Section 145, Cr.P.C. were initiated and preliminary order was passed on 24-1-1997. The second party Shiv Nayak moved an application for attachment of the house and shop under Section 146(1), Cr.P.C. on 4-2-1997, this application was allowed and attachment under Section 146(1), Cr.P.C. was ordered. Revision was preferred against the order dated '4-2-1991 which was an order under Section 146(1), Cr.P.C. This revision was partly allowed and partly rejected under the impugned order dated 10-4-1997. The direction has been that attachment of northern and southern shop shall be released and the attachment of remaining property shall remain in force. Revision has been preferred against this order on the ground that the order under Section 146(1), Cr.P.C. is interlocutory order hence not revisable and the revision is incompetent hence the impugned order is liable to be set aside.
3. In the writ petition the case is that the petitioner Ranjeet is in possession of the property and a civil suit was filed in which the Civil Court passed an order directing the parties to maintain status quo and in the face of this injunction order, the petitioner cannot be dispossessed in as much as he is in possession of the property. According to the petitioner, the proceedings under Section 145, Cr.P.C. as a whole are liable to be quashed so also the order dated 4-2-1997 of the Sub-Divisional Magistrate and order dated 10-4-1997 of the revisional Court.
4. Affidavits have been exchanged. Learned counsel for the parties were heard at length. At first the revision is proposed to be taken up.
5. In the revision, the first contention has been that an order under Section 146(1), Cr.P.C. is purely interlocutory and no revision lies against such order. The contention of the learned counsel for the opposite party No. 2 has been that such an order is riot an interlocutory order hence it is revisable. Several cases were cited by both the sides. In my view, in view of the Division Bench of this Court and the pronouncement of the Apex Court and also various decisions of this Court following the Division Bench verdict, there is hardly any scope for the contention that order of attachment under Section 146(1), Cr.P.C. is not interlocutory order and is revisable.
6. In Inderdeo Pandey v. Smt. Bhagwati Devi 1981 ACC 16 : 1981 All LJ 687 it has been held that an order made during the pendency of proceedings under Section 145, Cr.P.C. of the Code for attaching the property in dispute under Section 145(1), of the Code is purely interlocutory order within the meaning of Section 379(2) of the Code. In this Division Bench case, the cases of Amarnath Chawala v. State of Hariyana AIR 1977 SC 2185 : 1977 Cri LJ 1 891 and Madhu Limay v. State of Maharashtra AIR 1978 SC 47 : 1978 Cri LJ 165 were followed.
7. In Jagannath Singh Chauhan v. Smt. Shankuntala Singh 1990 AWC 119 it was held that order of attachment passed under Section 146(1), Cr.P.C. is an interlocutory order within the meaning of Section 397(2) of the Code and the revision against such order is not maintainable. In this case also the case of Amarnath Chawala v. State of Haryana and Madhu Limay v. State of Maharashtra (supra) were followed.
8. In Vijay Singh v. Ist Additional Sessions Judge Saharanpur 1991 ACC 99, it has again been held that order of attachment on the ground of emergency under Section 146(1), Cr.P.C. is an interlocutory order and revision against such revision is barred under Section 397(1), Cr.P.C. It was, however, further held in this case that final attachment order contains direction to the police to keep the property under attachment until adjudication of the rights or possession of the parties by competent court hence such order is not an interlocutory order. Thus from this case also it appears that a simple order of attachment on the ground of emergency passed under Section 146(1), Cr.P.C. is interlocutory order hence not revisable.
9. In Jai Prakash Singh v. Radhey Shyam Singh 1987 AWC 851 : 1987 All LJ 987 it was again he'd that an order of attachment under Section 146(1), Cr.P.C. is not final order but only interlocutory order hence a revision against such order is not maintainable. Same view was taken in Bhrigunath v. Parmeshwar 1996 All Cri C 426.
10. There is thus concensus of opinion of this Court that an order under Section 146(1), Cr.P.C. is interlocutory order hence it is not revisable.
11. I have also considered the cases cited by the learned counsel for the opposite party. In the Apex Court verdict in Ram Sumer Puri Mahant v. State of U.P. AIR 1985 SC 472, this question was not considered hence this case does not help the opposite party.
12. The case of S. Singh v. District and Sessions Judge, Kanpur 1996 JIC 1000 has also not considered this question, hence this does not help the opposite party. Moreover, this was not under revisional jurisdiction but it was a writ petition and since the question under consideration was not taken up in this case it does not help the opposite party.
13. The case of Ranjeet Singh v. Moti Lal Katiyar 1988 All LJ 489 also does not help the revisionist. Head note (A) of this case is confusing and it is incorrectly noted that order under Sections 145(1) and 146(1), Cr.P.C. can be" quashed in revision. The case itself was not a revision but a petition under Section 482, Cr.P.C. Relying upon the case of Madhu Limay v. State of Maharashtra AIR 1978 SC 47 : 1978 Cri LJ 165 where the Supreme Court held that "on a harmonious construction it should be held that bar provided in Section 397(2) opertes only in exercise of the revisional power of High Court meaning thereby that the High Court will have no power of revision in relation to any interlocutory order, but in such case inherent power will come into play, there being no other provision in the Code for the redressal of the grievance of the aggrieved party", this Court held that in exercise of inherent jurisdiction under Section 482, Cr.P.C. order under Sections 145(1) and 146(1), Cr.P.C. can be quashed. It is, therefore, clear that even Apex Court has held that revision against interlocutory order is not maintainable.
14. The case of Shah v. XII Addl. District Judge, Meerut 1974 JIC 744 also does not help the revisionist. In this case the facts were .all together different. On 15-4-1994 a different order was passed by the Magistrate without there being any change. In the circumstances of the case such a different order was found to amount to abuse of the procees of the Court hence it was set aside and not that a general proposition of law laid down in this case that every order under Section 146(1), Cr.P.C. is revisionable.
15. From the above discussion the first contention of the learned counsel for the revisionist can be accepted and it is held that the revision against purely interlocutory order of attachment under Section 146(1), Cr.P.C. is not I maintainable and the learned Additional Sessions Judge in entertaining and deciding such revision which is not maintainable travelled beyond his jurisdiction and as such the impugned order is liable to be set aside.
16. The next objection is that finding on question of possession has also been recorded by the revisional Court which is improper and without jurisdiction. This contention has also force. There is enough material on record to show that the revision was filed against the order dated 4-2-1997 passed by the Sub-Divisional Magistrate which was an order under Section 146(1), Cr.P.C. Even if illegal jurisdiction was exercised to look into the validity of an order under Section 146(1), Cr.P.C. it does not mean that the revisional Court got jurisdiction to decide the question of possession. It was not even taken up by the learned Sub-Divisional Magistrate. The question of possession is to be decided by the learned Sub-Divisional Magistrate as provided under Section 145, Cr.P.C. and it is only against such final order that revision can be entertained and propriety of the final order can be seen. A revisional Court cannot jump to the conclusion, while hearing a revision against interlocutory order, as to which part was in possession. At more than one places in the judgment, the revisional Court recorded its finding on question of possession which is certainly illegal and beyond jurisdiction.
17. There is also force in the contention that the release order is vague. If the revision itself against an order under Section 146(1), Cr.P.C. was not maintainable, the illegality of that order could not be gone into by the revisional Court and partly allowing of such revision and partly dismissing it again amounts to an action without jurisdiction and also an illegal action.
18. For the reasons given above, the revision succeeds and the impugned order dated 10-4-1997 is liable to be set aside.
19. Coming to the writ petition, the main grievance is that in view of the pendency of civil suit and order of the civil court directing the parties to maintain status quo the proceedings under Section 145, Cr.P.C. cannot be permitted to be continued. The grounds of revision is Annexure-7. In the revision filed before the Sessions Judge, the prayer is not very clear. It is mainly confined to setting aside the order dated 4-2-1997. It was prayed that the case under Section 145, Cr.P.C. be dismissed. Since the revision itself was incompetent and could not be filed against an interlocutory order the prayer for quashing the proceedings under Section 145, Cr.P.C. could not be made in that revision. No such prayer has been made before the learned Sub-Divisional Magistrate. The revisional Court has gone beyond jurisdiction in abruptly deciding the question of possession. The effect of pendency of civil suit and consequent order to the parties to maintain status quo is 10 be seen at the first instance by the learned Sub-Divisional Magistrate and thereafter in revision. Since alternative remedy is available this question for the first time cannot be seen in a writ petition nor a disputed question of possession can be decided under Article 226 of the Constitution of India. Consequently, on the ground of alternative remedy, the writ petition is bound to fail. Since the impugned order dated 4-2-1997 has been held above, as liable to be set aside, there is no good ground for allowing this writ petition.
20. In the result the writ petition is liable to be dismissed.
21. For the reasons stated above, the writ petition is dismissed. The revision is allowed. The impugned order dated 10-4-1997 is set aside.