- (1.) THIS revision has been filed against the judgment and order dated 16.7.2014 passed by Additional Sessions Judge, court No.6, Jaunpur in Criminal Revision No.298 of 2013, Varmanand Sonkar Vs. State of U.P. and others, by which the order of attachment dated 27.6.2013 passed by S.D.M. Sadar, Jaunpur under section 146(1) Cr.P.C. in case no.51 of 2013, Mahendra Prataph Vs. Permanand was set aside.
(2.) HEARD Sri Manish Dev Singh, learned counsel for the revisionist, Sri Avnish Pratap Singh, holding brief of Sri D.K. Singh, learned counsel for the opposite party no.2 and learned AGA for the State.
(3.) THE brief facts of the case are that upon application dated 7.5.2013 moved by the revisionist Mahendra Pratap Mishra, report of concerned police station was received on 18.5.2013 and preliminary order under section 145 (1) Cr.P.C. was issued on 21.5.2013 by the S.D.M., Jaunpur. The first party Mahendra Pratap Mishra moved an application on 28.5.2013 and 5.6.2013 alleging the dispute to be serious and requested for attachment of property under section 146 Cr.P.C., while the second party opposite party no.2 filed written statement on 13.6.2013 with the allegations that the report of police is wrong and collusive and the preliminary order dated 21.5.2013 is illegal and beyond jurisdiction. It was also stated that the second party is in actual physical possession over the property since its purchase on 5.2.2011 and is carrying on fruit business shop over it with his brother -in -law and sister -in -law, namely, Ashok Kumar and Rita, since the time of its purchase the property in question has never been in occupation of the first party, there is no dispute and no apprehension of breach of peace and the proceedings are liable to be dropped. The S.D.M. Sadar, District Jaunpur issued attachment order under section 146(1) Cr.P.C. on 27.6.2013 directing the S.O. P.S. Gaura Badshahpur to give the attached portion in custody of some impartial person. Feeling aggrieved with the order of S.D.M., the second party Varmanand Sonkar filed Criminal Revision No.298 of 2013 before Sessions Judge, Jaunpur, which was allowed vide order dated 16.7.2014 by Additional Sessions Judge, Court No.6, Jaunpur and setting aside the impugned order of attachment dated 27.6.2013 passed by S.D.M. the matter was remitted back to S.D.M. concerned for afresh disposal in accordance with law. Learned counsel for the revisionist argued that the house/room in question 12x9 feet was in ownership and possession of Bechan, Sochan and Lochan sons of Pherai on the strength of sale deed dated 6.2.1970; that later on Bechan sold his one -third share of the property to Satiram vide sale deed dated 28.7.1973, who in turn transferred it vide sale deed dated 5.2.2011 in favour of Vermanand in respect of more than the share purchased by him; that the two other co -sharer Lochan and Sochan sold their two -third share (8x9 feet) in favour of revisionist Mahendra Pratap by sale deed dated 10.4.2013; that since execution of sale deed dated 10.4.2013, a dispute has arisen between first party and second party as to possession over the property; that after moving application under section 145 Cr.P.C. the first party/revisionist had lodged a N.C.R. against opposite party no.2, under sections 323, 504, 427 IPC; that the order passed by S.D.M. is absolutely correct; that the revisional court failed to consider the facts of the case correctly and acted wrongly and erroneously in allowing the revision and setting aside the impugned order of attachment passed by the S.D.M.; that at the time of passing the impugned order of attachment, the Magistrate was not required to ascertain as to which of the party was in possession, as it was required only at the stage of final order under section 145 (4) and 145(6) Cr.P.C. and not at the stage of 146 (1) Cr.P.C.; that the impugned order of revisional court is wrong and illegal and is liable to be set aside.;