- (1.) B. K. Rathi, J. By means of this revision under Sections 397/401 Cr. P. C. the revisionist has prayed for quashing of the order dated 05-2-1999 passed by Spe cial Judge (SC/st Act,) Basti in Criminal revision No. 1 of 1999.
(2.) 1 have heard Sri S. K. Singh, learned counsel for the revisionist, Sri R. K. Tripathi, learned counsel for opposite party Nos. 2 to 6 and the learned A. G. A. The facts giving rise to this revision are as follows: A report was submitted on 15-11- 1998 by the police before the Sub Divisional Magistrate, Harraiya, Basti to start proceedings under Section 145 Cr. P. C. regarding agricultural plots Nos. 311, 332 and 437. On the basis of the said report a preliminary order under Section 145 Cr. P. C, was passed on 22-12-1998. This order was challenged in Criminal revision No. 1 of 1999. The revision has been al lowed by the impugned order dated 05-02-1999 by Special Judge (SC/st Act) and he has quashed the order dated 22- 12-1998 passed by Sub Divisional Magistrate, Har raiya, Basti and dropped the proceedings under Section 145 Cr. P. C. Aggrieved by that order, the revisionist has approached this court.
(3.) IN my opinion the learned Special Judge has exceeded his jurisdiction in quashing the order and dropping of the proceedings. It is settled law that order under Section 145 (1) Cr. P. C. , is a inter locutory order against which the revision is barred by mischief of Clause (2) of Section 397 Cr. P. C. The revision was therefore not maintainable before the Additional Ses sions Judge and he has erred in entertain ing the revision and allowing the same. Regarding the merits, it may also be mentioned that the approach of the learned Special Judge in this matter was totally erroneous. It is admitted that a civil suit is pending between the parties regard ing the same land. However, it is also ad mitted that till now no effective order regarding the possession of any part has been passed in the civil suit unless there is any adjudication of rights by the civil court the proceedings under Section 145 Cr. P. C. is not barred merely by pendency of the civil suit. If there is any apprehension of breach of peace the Magistrate may start proceedings under Section 145 Cr. P. C, notwithstanding that the dispute regard ing the property is pending before the civil court. In case there is any effective order regarding the possession of any party of the civil court, the Magistrate may not start the proceedings under Section 145 Cr. P. C. and may only start proceedings under Sec tion 107/116 Cr. P. C.;