- (1.) K. Narayan, J. This petition under Section 482 Cr. P. C. is directed against the order dated 28. 1. 82 recorded by the 1st Additional Sessions Judge, Nainital in Criminal Revision No. 121 of 1981. This revision itself was directed against the order dated 17. 9. 81 passed by the S. D. M. , Rudrapur in proceedings under Section 145 Cr. P. C. registered as Criminal Caseno. 1l/17of 1980.
(2.) I have heard the learned counsel for the petitioner as well as the opposite party No. 2 and have also gone through the record of the case. It appears that the proceedings before the court of Magistrate had commenced on an application of one Narendra Dubey, the opposite party No. 2 here. What happened and now the application was taken by the Magistrate is not made out, but it appears that somehow Sri Lallan Prasad, the petitioner here, made an application before the Magistrate informing that there was no apprehension of breach of peace and that the proceedings were not proper. This also shows that an attachment had already been made before this application was moved before the Magistrate. The learned Magistrate by his order dated 17. 9. 81, observed that there was no occasion to think that the existence of apprehension of breach of peace had ceased to exist and consequently there was no occasion to drop the proceedings and rejected the applica tion. He directed the case to proceed. This order was challenged before the learned Sessions Judge. A perusal of the judgment of the Sessions Judge snows that the party had not put in appearance may be for any reason. The Sessions Judge was of the view that the order of the Magistrate was an interlocutory in nature and, therefore, a revision could not be entertained. Aggrieved by this order the petitioner has come before this court. Before me reliance has been placed on the case of H. K. Rawal and another v. Nidhi Prakash and another, 1989 AWC 632. After a perusal of this judgment, I am of the view that the opposite party has also conceded that the High Court is competent under Section 482 Cr. PC. to look into the merits and demerits of the decision arrived at by tfte Sessions Judge and it should not go behind the revision when the revision against any order of Magistrate had already been dismissed. In brief, it may be said that the powers exercised by the Sessions Judge in dealing with a revision may be scrutinised in order to see that there has been any miscarriage or misuse of law for interference, but the merits and demerits of already recorded the order of attachment before even the apt party. I do not know, if there was any such report of the police but that does not make any difference. Under Section 145 Cr. PC. the Maigstrate is not as free to record an order of attachment as he has passed under Section 145 Cr. P. C. which has been communicated subsequently. Section 145 Cr. P. C. authorises the Magistrate and lays down the procedure where the dispute concerned is of possession of the land or water and is likely to cause the breach of peace. There is nothing in this section to direct an attachment of the property. An attachment can be directed under Section 146 Cr. P. C. in particular circumstances if obtaining in the case i. e. , if the Magistrate at any time after making the order under Section 145 of the Code of Cr. PC. considers the case to be: (1) one of emergency or, (2) if he decides that none of the parties was then in possession or, (3) if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. In the facts and circumstances, at feast for these reasons the Magistrate could record and order of attachment only in the event that he had come to one conclusion or the other mentioned in Section 146 Cr. P. C. without giving any finding, which it need hardly be said to also to give reasons and deal with record is the requirement of quasi judicial order and order of attachment could not be made, This was something which should have been considered by the Sessions Judge before proceeding to dismiss the revision. The order of the Magistrate under Section 145 (1) Cr. P. C. has also to be in writing and is to be one showing the grounds of his satisfaction about the existence of apprehen sion of breach of peace.
(3.) THE powers of the Sessions Judge or any revisional court are not limited by the arguments or otherwise of the petitioner or the other party. Once the petition is enter tained it becomes the duty of the Sessions Judge to look into the entire case and come to a proper conclusion. Once a revision has been admitted, even if the petitioner did not appear before the Sessions Judge, it could not have been so easijy decided. THE order of the Sessions Judge was thus pronounced with a material omission which might have resulted in miscarriage of justice. This petition, therefore, should succeed and the case should go back for a fresh decision of the revision according to law.;