Allahabad High Court
Jage Ram Bhati vs State Of U.P. And 2 Others on 13 January, 2023
Bench: Ram Manohar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 50
Case :- MATTERS UNDER ARTICLE 227 No. - 7928 of 2022
Petitioner :- Jage Ram Bhati
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Kamlesh Kumar Dwivedi
Counsel for Respondent :- G.A.,Dharmendra Dhar Dubey
Hon'ble Ram Manohar Narayan Mishra,J.
Heard learned counsel for the petitioner and Sri Dharmendra Dhar Dubey, learned counsel for the respondent and Sri R.P. Pandey assisted by Manoj Mishra, learned AGA for the State.
Present petition under Article 227 of the Constitution of India is filed by the petitioner against the impugned order dated 30.8.2022 passed by learned Additional Sessions Judge, court no. 2, Ghaziabad in Application 30-kh dated 17.8.2022 filed by the petitioner in Criminal Revision no. 387 of 2022 (Raj Bhati vs. Jage Ram Bhati and another) under Section 146(1) Cr.P.C., P.S. Loni Border, District Ghaziabad. By the impugned order learned Additional Sessions Judge has rejected the application 30-kh moved by opposite party no. 1, who is petitioner before this Court, in application 30-kh and opposite party before the Revisional court had challenged the maintainability of revision preferred against the impugned order dated 20.7.2022 passed by learned Magistrate under Section 146 Cr.P.C., while rejecting the application 30-kh learned Revisional court has observed that question of maintainability of revision would be decided with the revision petition. Feeling aggrieved by the impugned order passed by Revisional court present petition is filed wherein main ground has been taken that the impugned order is illegal and contrary to the law, as question of maintainability of revision may not be decided at the time of disposal of revision and Revisional court is bound to decide the same at the preliminary stage.
In application 30-kh, applicant, who is petitioner before this court, has stated that impugned order passed by learned Executive Magistrate on 20.7.2022 in the case under Section 146 Cr.P.C. was an interlocutory order against which revision is not maintainable.
Learned counsel for the petitioner submits that learned Executive Magistrate has passed the order under Section 145 Cr.P.C. on 24.11.2020 in which a finding was recorded that there was sufficient ground to proceed in the case under Section 145 Cr.P.C. where dispute of a house lying in an agricultural plot was involved between the parties and the parties were directed to appear before the court alongwith their respective evidence/ clarification. Subsequently, case u/s 145 Cr.P.C. was decided vide order dated 20.7.2022 under Section 146(1) Cr.P.C. wherein learned Magistrate has passed an order for attachment of the disputed property in exercise of power vested to him u/s 146(1) Cr.P.C. and SHO, concerned, was directed to appoint a receiver, who will take the property in his custody and keep it under attachment until any party moves regarding ownership or possession with respect to property in question.
Learned counsel for the petitioner cited Full Bench judgement of this Court in the case of Munna Singh @ Shivaji Singh and others vs. State of U.P. and another, reported in 2011 (3) JIC 628 (All) (FB) as well as subsequent judgement of Single Bench of this Court in the case of Indramohan Gautam vs. State of U.P. and others reported in (2018) 1 ADJ 550.
Per contra, learned counsel for the respondents submits that petition is misconceived and as per law of this Court in the said Full Bench decision, impugned order against which revision is filed by the respondent before the court of Session Judge, cannot be held as an interlocutory order and revision is maintainable against the impugned order passed under Section 146(1) Cr.P.C. Learned counsel has cited judgement of Hon'ble Apex court in Ashok Kumar vs. State of Uttrakhand and others decided in Criminal Appeal No. 2038 of 2012 arising out of SLP No. 3932 of 20212.
I have gone through the various judgements of this Court cited by learned counsel for the petitioner and perused the material on record. This Court has held in the Full Bench judgement in Munna Singh (supra) the question was referred "where the orders passed by the Magistrate under Section 145(1) of the Code are interlocutory order simplicitor and no revision petition under Section 397 or 403 of the Code or petition under Section 482 of the Code is maintainable against the same".
The reference was answered in para-41 of the judgement of Full Bench, wherein, it is held "our answer to the question referred would be therefore in the negative and we hold that orders passed under Section 145(1) and 146(1) of the Code are not in every circumstance, orders simplicitor, and therefore a revision would be maintainable in the light of observations made in this judgement depending on the facts involved in each case.
Above precedent of Full Bench was relied upon by Single Judge of this Court in Indramohan Gautam vs. State of U.P. and another reported in (2018) 1 ADJ 550 wherein this Court observed in para 6 and 7 as under:
It is settled principle of law that title of a property may only be decided by the competent Civil Courts and under the provisions of Sections 145 and 146 Cr.P.C., the Executive Magistrate may take action in respect of a dispute only about actual possession over the property, where there is apprehension breach of peace due to above dispute. Prior to 2011 in a number of cases, it was held that an order of attachment under Section 146(1) Cr.P.C. is an interlocutory order against which revision is not maintainable under the provisions of Section 397 Cr.P.C. However, in due course of time, the matter of maintainability of revision was referred to full Bench and the full Bench of this Court in the case of Munna Singh @ Shivji Singh and others Vs. State of U.P. 2011 (9) ADJ 1998 held that
"An order of attachment under Section 146(1) Cr.P.C. is an order of movement which has effect on the right of party in possession-cannot therefore, be said to be mere interlocutory order so as to bar revisional jurisdiction of High Court.
Invoking of the emergency powers under Section 146(1) Cr.P.C. is dependent on satisfaction of Magistrate-When none of parties are in possession, or Magistrate is unable to decide as to which of the parties was in possession, exercise of emergency power can be resorted to.
Where rights of parties affected, that is not an interlocutory order of attachment and depends upon facts of each particular case.
Order under Sections 145(1) & 146(1) Cr.P.C. are not in every circumstance, orders simplicitor- therefore a revision would be maintainable depending on facts involved in each case."
In view of the law laid down by the full Bench of this Court, the contention of learned A.G.A that impugned order is an interlocutory order and revision against the same is not maintainable may not be accepted and the revision may not be dismissed as not maintainable. In view of above case law by Full Bench, the judgment passed in the case of Yaqub Ali (supra) by a single judge of Rajasthan High Court has no force.
Considering the submissions of learned counsel for the parties and on perusal of materials available on record including impugned judgement and order of learned Magistrate, this Court is of the opinion that learned Sessions Judge had committed no illegality or infirmity while passing the impugned order dated 30.8.2022 and judgement of learned Magistrate dated 20.7.2022 against which revision was preferred by present respondent no. 3, cannot be termed as an interlocutory order in the light of the judgement of this Court cited as above.
The petition is devoid of merits and is liable to be dismissed.
The writ petition is dismissed accordingly.
The Revisional court is directed to decide the revision petition expeditiously in accordance with law after giving due opportunity of hearing to the parties.
Order Date :- 13.1.2023
Dhirendra/
