- (1.) KUNDAN Singh, J. Haerd learned counsel for the parties and perused the record.
(2.) IT is admitted to the counsel for both the parties that proceedings under Section 146, 145, P. C. are still pending. The Magistrate passed an order under Section 146 (I), Cr. P. C. on 17-8-91 attaching the property in dispute and the contention of the learned counsel for the applicant is that the revision before the lower revisional court was not maintainable in view of the Code, of course, an order of attachment passed under Section 146 (1), Cr. P. C. is not a final order but an interlocutory order against which no revision lay in view of sub-section (2) of Section 397 of the Code of Criminal Procedure and I fully share with the view of learned counsel for the applicant that the order dated 7-7-1992 passed by the learned Additional Sessions Judge was without jurisdiction. On the contrary, the argument of the learned counsel for the opposite party No. 8 was that the proceedings under Section 145, Cr. P. C. are pending before the Sub-Divisional Magistrate, Lalitpur while the order of attachment has been passed by the S. D. M. , Tal Behat district Lalitpur for which he lacked territorial jurisdiction, hence the order of the Magistrate itself was without jurisdiction and that mistake on the record of the Magistrate could be set right in revision by the learned Sessions Judge. Therefore, the revision filed by the opposite party No. 2 before the learned Sessions Judge was com petent. I am afraid to accept this contention of the learned counsel for the opposite party No. 2 because a bare look of the order of the Magistrate dated 17-8-91 dispels the doubt from my mind that the order assailed in the revision before the learned sessions Judge has been passed by S. D. M. Tal Behat. In the order itself in the title of the case the designation of the Magistrate is mentioned as Sub-Divisional Magistrate, Lalitpur, since the order passed under Section 146, Cr. P. C. was an interim order, as link officer in absence of the incumbent of the Sub-Divisional Magistrate, Lalitpur, he could pass the order dated 17-8- 91 and for all practical purpose it would be treated as an order passed by the S. D. M. Lalitpur and not by the Sub-Divisional Magistrate Tal Behat and since the order dated 17-8-91 was an interlocutory order, it was not subject to revisional jurisdiction either before this court or the court of Sessions. In support of the above submission the learned counsel for the opposite party cited a decision of this court in the case of Satya Vrat Bhattacharya v. Jarnail Singh, reported in 1976 Cr LJ 446. There is no quarrel with the law laid down in the decision aforesaid but the facts of the present case are different. In the instant case the S. D. M. Tal Behat had passed the order of attachment in an emergent situation as link officer of the Sub-Divisional Magistrate, Lalitpur. Even in the title of the case, as mentioned above, he has described himself us Sub-Divisional Magistrate Lalitpur and not as S. D. M. Tal Behat. Further, he had passed only an interlocutory order as officer-in-charge and had not decided the case finally and such interim order, considering the existence of emergency could be passed by him in the capacity of a link officer. Therefore, the decision relied upon by the learned counsel does not apply to the facts and circumstances of the instant case.
(3.) THE next contention of the learned counsel for the opposite party was that in the case 16-8-91 was the date fixed before the Magistrate but on that date there was strike of the lawyers in the District Courts, hence the case was adjourned to 18-9-91 and the learned Magistrate rather taking the case on the adjourned date took it up on 17-8-91 and passed the order of attachment on 17-8-91 itself without hearing the counsel for the opposite party No. 2 of course, a court should not take up a case earlier than the date fixed and that too without notice to the parties it depends upon the situation also. Needless to say an order of attachment is passed in the case of emer gency. If in emergent situation, keeping in view the law and order position, the Magistrate has passed the order of attachment without hearing any party, it is always open to that party to approach the Magistrate and bring to his notice that there was no emergency for passing the order without hearing both the parties and if he is convinced he may recall that order, being passed without hearing the aggrieved party and pass a fresh order after hearing both the parties. So if the opposite party feels that there did not exist any emergency for invoking the powers under Section 146 (1), Cr. P. C. , he may move the Magistrate again for recalling his order but this court cannot lay down as a rule of thumb that even in grave situation and emergency the Magistrate can not exercise his discretion and take up a case earlier than the date fixed in it. Accordingly, the revision succeeds and is hereby allowed and the order passed by the Sessions Judge dated 7-7-92 is set aside. Revision allowed, .;