- (1.) G. D. Dubay, J. This revision has been preferred against the judgment and order of Third Additional Sessions Judge, Gorakhpur, setting aside the order of the Executive Magistrate/sub Divisional Magistrate, Khajani, Gorakh pur, attaching the property in dispute under Section 146 (1) of the Code of Criminal Procedure (hereinafter referred to as the Code ).
(2.) THE facts are very brief. On a report of Station Officer, Police-station Khajani dated 17-6-1989, the Magistrate passed the preliminary order under Section 145 (1) of the Code. An application supported by affidavit was moved by first party on 5-7-1989 to attach the property as there was serious apprehension of breach of peace. THE learned Magistrate, being satisfied that there was emergency, attached the property. This gave rese to a revision before the Sessions Judge which was decided by Third Additional Sessions Judge as stated above. It has been urged that the learned Sessions Judge had no jurisdiction to sit in judgment over the element of satisfaction of the Magistrate. My attention was drawn to Jagannath Singh Chauhan v. Smt. Shakuntala, 1990 AWC 119. It was argued that in the above case the impugned order of the Magistrate under Section 146 (1) of the Code was an interlocutory order. No revision was maintainable against it. As against the above argument, learned counsel for the opposite-parties urged that mere statement by the Magistrate that there may be breach of peace cannot be taken as a case of emergency. The order must indicate why the Magistrate thought it so. If it was not done, then such an order cannot be sustained. In support of his contention, learned counsel for the opposite-parties has relied upon Amrit Singh and others v. Gyandeo Sharma 1978 Criminal Law Journal 671, B. Dasso Patro v. B. Tariniga Patro, 1963 Criminal Law Journal 121 and Raghubir Singh v. Asharfi Lal : 1987 All. Criminal Reports 127.
(3.) THE learned Sessions Judge has considered the cases cited by the counsel. THE learned Sessions Judge came to the conclusion that for invoking the provisions of Section 146 (1) of the Code, the learned Magistrate should show that there was an emergency. Since the order of the learned Magistrate does not show that there was an emergency, hence the order passed under Sec tion 146 (1) of the Code was not an interlocutory order. The Third Additional Sessions Judge has misinterpreted the impugned order of the Magistrate passed under Section 146 (1) of the Code. The short order of the laerned Magistrate itself speaks that on a report received from the police-station he had drawn the preliminary order. Only after the first party moved the petition supported by an affidavit, the learned Magistrate had opined that there was an emergency and had passed order of attaching the property.;