- (1.) S. R. Bhargava, J. This revision is directed against order dated 6. 6. 1989, passed by Addl. Sessions Judge, Saharanpur, allowing the revision of opposite party No. 11 and quashing the orders of the Sub-Divisional Magistrate under Sees. 145 and 146 Cr. P. C.
(2.) FACTS are that police submitted report dated 17. 1. 1989 to S. D. H. , Deoband, District Saharanpur stating that revisionist Vijai Singh and Opposite Party No. 2 Dharmvir Singh own a joint Haveli (building) in village Sadauli. There is dahlees (main entry) and stair-case for passage. Dharmvir has got construction made above the dahlees. Both these parties claim the dahlees and stair-case. There is dispute between these parties about the construction made above the dahlees. Both the parties want to take possession over the land of the construction resulting into apprehension of breach of peace and there is eminent danger of breach of peace. Proceedings under Sees. 107/116 Cr. P. C. have been launched against the parties. Police prayed launching of proceedings under Sec. 145 Cr. P. C. Upon this report S. D. H. concerned passed order dated 16. 2. 1989 "issue notice under Sees. 145 (1) and 146 (1) Cr. P. C. " This order was followed on the same day by separate formal orders under Sees. 145 (1) and 146 (1) Cr. P. C. In formal order under Sec. 145 (1) the parties concerned were required to appear before the Magistrate on 23. 3. 1989, and to file their written statements and produce evidence. In formal order under Sec. 146 (1) not only attachment of the disputed property was directed but the police was also directed to keep the property under attachment until order or decree of competent court deciding rights or possession of the parties is obtained. Opposite party No. 2 filed a revision against order issuing notices under Sees. 145/146 Cr. P. C. before the Sessions Judge which came up for disposal by Addl. Sessions Judge. The learned Addl. Sessionsc Judge held that order under Sec. 146 could be passed only after an order under Sec. 145 (1) but the learned Magistrate passed a composite order which was only a direction to the office and was without application of mind. The learned Addl. Sessions Judge further held that proceedings could not launched in respect of joint property or land held by co-tenants or co- sharers. The learned Magistrate observed that every co-sharer is deemed to be in possession of every inch of joint land and where the parties are in joint possession proceedings under Sec. 146 cannot be directed. The learned Addl. Sessions Judge was of view that the order appeared to him to have been passed in arbitrary manner. It this further appears from the judgment of the learned Addl. Sessions Judge that it was urged before him that the order passed by the -Magistrate was inter locutory order and the revision was barred by Sec. 397 (2 ). The learned Addl. Sessions Judge did not feel the necessity to enter into the controversy whether the order passed by the Magistrate is an interlocutory order or final order because great miscarriage of justice has taken place and the learned Magistrate has passed the order in question arbitrarily without following the procedure laid down in Sees. 145 (1) and 146 (1) Cr. P. C. Order being patently improper, the revisional court has jurisdiction to interfere.
(3.) BEING aggrieved by the order of the Addl. Sessions Judge, Vijai Singh has come to this Court in revision. First point urged in this revision is that the order of the Addl. Sessions Judge is without jurisdiction because the order under Sees. 145 (I) 146 (3) is an interlocutory order and revision against an interlocutory order is barfed by Sec. 397 (2 ). On behalf of revisionist in this Court reliance was placed on the Division Bench case of this Court Indra Deo Pandey v. Smt. Bhagwati Devi, 1981 ALJ 687. In this ruling reference was made to the case olharnath Chanda v. State of Haryana, AIR 1977 SC 2185 in which Hon'ble Fazal Ali, J. said: - "it seems to us that the term 'interlocutory order' in Sec. 397 (2) of the 1978 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because, that would be against the very object which formed the basis for insertion of this particular provision in Sec. 397 of the 1978 Code. Thus, for instance, orders summoning witnesses adjourning cases, passing orders for bail, calling for reports and such other steps in and or the pending proceed ings, may no doubt, amount to interlocutory orders against which no jevision would lie under Sec. 397 (2) of the 1973 Code. But orders which are matters of recent and which affect or adjudicate the rights of the accused or a particular aspect to the trial cannot be said to be interlocutory order so as to be outside the purview ofthe revisional jurisdiction of the High Court. " In the case of Indra Deo Pandey (ibid) case of Sohan Lal Puran v. State of U. P, 1977 Cr. LJ 1322, decided by Division Bench of this Court was referred and it was held that case no doubt decided that order under Sec. 146 is a final order inasmuch as the proceedings under Sec. 145 of the Code stand concluded after such an order is passed and as such the order of attachment would fall outside the ambit of interlocutory order yet in the case of Mathuralal v. Bhanwar Lal, AIR 1980 SC 242, it was laid down that where an order of attachment on ground of emergency is passed by the Magistrate he is bound to decide the question of possession under Sec. 145 (4) and deliver possession to the party found in possession, and so after the decision of the Supreme Court, in Mathuralal's case, an order of attachment under Sec. 146 (1) on ground of emergency is an interlocutory order, and the earlier view thai an order attaching property is a final order disappears.;