Allahabad High Court
Daryav Singh vs State Of U.P. And 5 Others on 8 January, 2021
Bench: J.J. Munir
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 74
Case :- MATTERS UNDER ARTICLE 227 No. - 4227 of 2020
Petitioner :- Daryav Singh
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Nanhe Lal Tripathi
Counsel for Respondent :- C.S.C.
Hon'ble J.J. Munir,J.
Heard Mr. Nanhe Lal Tripathi, learned counsel for the petitioner and the learned AGA appearing on behalf of the State.
The Sub-Divisional Magistrate, Mehrauni, District Lalitpur by an order dated 14.07.2020, passed under Section 145(1) Cr.P.C., has not only required parties to put in their written statements, but further ordered them to maintain status quo till the date fixed for the purpose. This order of the Sub-Divisional Magistrate, insofar as it directs the parties to maintain status quo was challenged by respondent Nos. 2 to 6 before the learned Sessions Judge, Lalitpur, by means of Criminal Revision No.48 of 2020. The learned Sessions Judge, Lalitpur, by means of the judgment and order dated 27.10.2020, has set aside the Magistrate's order to the extent that he has directed the parties to maintain status quo. The learned Judge has, however, left the Magistrate free to pass a fresh order under Section 145/146 Cr.P.C. in accordance with law.
Aggrieves, this petition under Article 227 of the Constitution has been filed.
Mr. Nanhe Lal Tripathi, learned counsel for the petitioner submits that the impugned order is manifestly illegal because it is a purely interlocutory order where against no Revision lay, considering the bar under Section 397(2) Cr.P.C.
Learned AGA has opposed the motion to admit this petition to hearing.
This Court has perused the impugned order passed by the learned Sessions Judge, as also the order of the Sub-Divisional Magistrate. It must be remarked that a perusal of the Sub-Divisional Magistrate's order does not show at all that he acted under Section 146(1) Cr.P.C., which alone invests him with jurisdiction to pass orders of an interim nature, like attachment, etc. An Executive Magistrate is not a Judge or a Court of plenary civil jurisdiction, who may pass orders of temporary injunction, pending proceedings. He derives limited jurisdiction from the provisions of Section 145 Cr.P.C., and the cognate provisions of the Code. The powers under Section 146 Cr.P.C., come into play alone, once proceedings under Section 145 Cr.P.C., are commenced and pending those proceedings, the Magistrate finds that there is an emergency where he must order attachment of the property, subject matter of dispute in order to prevent breach of peace pending proceedings. The Magistrate can also attach enuring beyond the decision of proceedings under Section 145 Cr.P.C., under two other contingencies, but those are not relevant here.
Whatever be the case, the Magistrate cannot virtually pass an order of temporary injunction, while making a preliminary order under Section 145(1) Cr.P.C., as appears to be the case here. So far as the objection regarding the judgment of the learned Sessions Judge being flawed in that, that the order under challenge in Revision was an interlocutory order is concerned, this Court is afraid that the bar under Section 397(2) would not apply. This is for the reason that once the order under challenge in Revision, is without jurisdiction, it cannot properly be called an interlocutory order at all. Moreover, the order directing parties to maintain status quo affects rights of parties and is an order of moment; once made without jurisdiction, it can certainly be interfered with by the Revisional Court.
In the opinion of this Court, the learned Sessions Judge, Lalitpur, has rightly set aside the order to the extent that the Magistrate has passed an interim order of status quo invoking his jurisdiction under Section 145 Cr.P.C., and without the procedure there.
In the opinion of this Court, no interference with the impugned order is called for. The prayer to quash the impugned order passed by the learned Sessions Judge, Lalitpur is, therefore, rejected.
However, in the circumstances of the case, it is directed that the Sub-Divisional Magistrate, Mehrauni, District Lalitpur shall proceed to decide the case under Section 145 Cr.P.C., expeditiously and pass whatever orders can be made within his jurisdiction, after hearing the parties concerned.
This petition is, accordingly, disposed of in terms of the aforesaid order.
Order Date :- 8.1.2021/NSC
