- (1.) Initially the revisionist had filed an application under 482 Cr.P.C. but subsequently by the order of the Court the same was allowed to be converted into a revision and therefore, is being heard as such. The revision has been filed assailing the validity of the order dated 12.12.2005 passed by the City Magistrate under 145(1) Cr.P.C. and also under 146(1) Cr.P.C. in Case No. 31 of 2005 Gulam Navi v. Wasim, relating to P.S. Nagfani, District Moradabad. List has been revised but even on the repeated calls none has appeared on behalf of the revisionist to press this revision. Miss Sima Saher has appeared on behalf of the respondent No. 4 who is holding brief of Smt. S. Saba. Learned AGA is also present. This is an old revision and in the wake of heavy pendency of the cases in the Court I do not see any good ground to procrastinate the matter any further and therefore, deem it fit to proceed in the matter on the basis of the record and with the assistance rendered by learned AGA as well as Ms. Sima Saher, the counsel for respondent No. 4. It appears that on the application moved on behalf of Gulam Navi, opposite party No. 4 with regard to the dispute of the property and consequential apprehension of breach of peace arising out of the same, the police inquired into the matter and sent a report to the Magistrate concerned. According to the contents of the application he claimed himself to be the owner in possession of the disputed property in question and also claimed active business being done by him using the same property. As indicated in this application, the proceeding under Section 107/116 Cr.P.C. were also drawn up between the parties. The first party Gulam Navi requested the Magistrate to initiate the proceedings under Section 145(1) Cr.P.C. The perusal of the police report indicates that according to the inquiry of the police, the property in question was under serious dispute and both the rival parties were claiming ownership of the same. The police report also confirms the fact that the proceedings under Section 107/116 Cr.P.C. had already been drawn up in between the parties. The police also requested the Magistrate concerned to draw up the proceeding under Section 145(1) Cr.P.C. and also to attach the property under Section 146(1) of the Code.
(2.) Being satisfied about the apprehension of breach of peace on the basis of the aforesaid application moved by the first party and also on the basis of the police report the Magistrate was of the view that there was apprehension of breach of peace in between the parties with regard to the property in question and therefore, he deemed fit to proceed under Section 145(1) Cr.P.C. and passed the impugned order on 12.12.2005. It also appears that on the same date the Magistrate also deemed it fit to proceed under Section 146(1) of the Code and passed the order attaching the property in question.
(3.) The contention of Miss Sima Saher that if the Magistrate concerned was satisfied about the apprehension of breach of peace it was very much within the jurisdiction to proceed under the aforesaid section and there is absolutely nothing wrong in the order passed by him. Apart from the same it has also been submitted that the order in question is of interlocutory nature and it does not adjudicate finally or substantially with regard to the rights of either of the parties. It is an order, according to the counsel which initiates the proceedings without affecting adversely the rights of any party. The grounds of revision have been perused by the Court and this Court is also of the view that so far as the order passed under Section 145(1) Cr.P.C. is concerned there is hardly anything wrong on the basis of which the same may be faulted with and there is no illegality, impropriety or incorrectness in the same and the revision with regard to the preliminary order passed by the Court below, therefore, stands rejected. But so far as the order passed under Section 146(1) is concerned the perusal of the same indicates that there is absolutely no finding given by the Magistrate regarding the existence of emergency situation. The only finding which finds place in the impugned order is that of the apprehension of breach of peace. There is a marked and qualitative difference between the apprehension of breach of peace and the existence of an emergency situation. If the Magistrate in given facts of the case conies to the conclusion that the breach of peace is apprehended, he assumes the jurisdiction to initiate the proceeding under Section 145(1) Cr.P.C. The apprehension of breach of peace does not automatically authorizes a Magistrate or confer the jurisdiction on him to attach the property. AH the cases in which the Magistrate deems it fit to proceed under Section 145(1) Cr.P.C., it is not necessary for him to attach the property also. He assumes the jurisdiction to attach the property only if given facts of the case convince him or satisfy him about the existence of an emergency situation. It may be his subjective satisfaction but without having that satisfaction and recording a finding to that effect it is gravely doubtful that he could at all proceed under 145(1) Cr.P.C. The preliminary order passed under 145(1) and the order under 146(1) Cr.P.C. have been virtually and substantially couched in the similar language regarding the satisfaction of the Magistrate only about the apprehension of breach of peace alone. In the view of the Court, the matter goes and cuts at the root of the jurisdiction of the Magistrate to proceed under 146(1) Cr.P.C. The submission of Ms. Sima Saher that the order under 146(1) Cr.P.C. is an interlocutory order, is also not very convincing. The interlocutory orders if passed without jurisdiction would hardly attract the bar or embargo created by Section 397(2) Cr.P.C. The absence of jurisdiction makes the order non-est. It is no order at all. The interlocutory order contemplated under Section 397(2) Cr.P.C. must have the legal existence and must have been passed by a competent Court who had the jurisdiction to pass the order. The official status of the Magistrate may give him the competence to proceed under Section 146(1) Cr.P.C. but the operation of same jurisdiction has some condition precedents. The existence of emergency is sine-qua-non before the Magistrate can really proceed to attach the property. The non existence of emergency situation will divest the Magistrate from the jurisdiction to attach the property. I, therefore, deem it fit to allow the revision to that extent and set aside the order of attachment.;