Umeshwar Pandey - (1.) -Revisionist Gulab Chand has approached the Court under Section 397 read with Section 401 of the Code of Criminal Procedure (for short the 'Code') assailing the order dated 13.2.1996, passed by the IInd Additional Sessions Judge, Aligarh.
(2.) THE revisionist moved the Sub-Divisional Magistrate, concerned through application dated 11.4.1994, for initiating proceedings under Section 145 of the Code in respect of a building raised on a piece of land stating that there was likelihood of breach of peace on the dispute of possession over the building between him and the opposite party Smt. Ashok Kumari. A report from the police, on the said application was called by the Magistrate and the police in its report dated 15.6.1994, gave out that there were four rooms in the building under the residential occupation of opposite party Smt. Ashok Kumari, Gulab Chand claims to have purchased it from Satya Dev father of Smt. Ashok Kumari on 26.7.1993. On this report, the Magistrate passed the preliminary order under Section 145 (1) of the Code on 26.7.1993 and Smt. Ashok Kumari was called upon to submit her written statement which was actually submitted on 10.10.1994 stating that she has been all through in peaceful possession over the said building and the proceedings may be dropped. THE revisionist Gulab Chand prior to that on 16.8.1994, had also submitted an application for passing an order of attachment under Section 146 (1) of the Code stating that Smt. Ashok Kumari with the help of her father was trying to oust him from the building. Against this application also objections were submitted from the side of opposite party Smt. Ashok Kumari. THE learned Magistrate, however, vide order dated 22.7.1995 passed the order for attachment of the building and directed the police to give it in supurdgi of a third person. The opposite party Smt. Ashok Kumari being aggrieved with the aforesaid order of attachment dated 22.7.1995, preferred criminal revision before the learned Sessions Judge which was ultimately decided by the IInd Additional Sessions Judge by the impugned judgment. The lower revisional court holding that an order of attachment under Section 146 (1) of the Code was wholly uncalled for under the facts and circumstances of the case, allowed the revision and the said order under Section 146 (1) of the Code dated 22.7.1995 was set aside. Smt. Ashok Kumari was permitted to continue her occupation of the disputed residential house till the proceedings were finally decided between the parties. I have heard learned counsel for the parties and perused the material on record.
(3.) IT is contended by the learned counsel for the revisionist that the lower revisional court has erred in entertaining a revision under Section 397 of the Code against an order passed under Section 146 (1) of the Code as it is an interlocutory order within the meaning of Section 397 (2) of the Code. A revision against such an order is barred. Learned counsel for the revisionist has cited the case of Kalloo and others v. State of U. P. and another, 1998 (1) ACR 178 : 1997 JIC 832 (All). In para 17 of the judgment, the learned single Judge has held as following : "If the revision itself against an order under Section 146 (1), Cr. P.C. was not maintainable, the illegality of that order could not be gone into by the revisional court and partly allowing of such revision and partly dismissing it again amounts to an action without jurisdiction and also an illegal action." ;