- (1.) At the instance of Bhrigu Nath a preliminary order under Section 145 Cr. P.C. was passed by the Sub-Divisional Magistrate, Saidpur, Ghazipur on 14-9-92. An application for attachment of property was moved. The opposite party No. 1 Parmeshwar challenged the jurisdiction of the Court to proceed under Section 145 Cr. P.C. on the ground of he was in joint possession of Chak Nos. 105 and 301. This contention having been rejected by the Sub-Divisional Magistrate, opposite party No. 1 Parmeshwar filed a Criminal Revision No. 7/93, which was dismissed on 7-9-94, which order was challenged in writ petition. On 29-10-94 the Sub-Divisional Magistrate directed the attachment of property. This order was challenged in Criminal Revision No. 269 of 1994, before the learned Session Judge, Ghazipur. The learned Sessions Judge found that the learned Sub-Divisional Magistrate having not recorded finding that the case was one of emergency, had not applied his mind and decided the application for attachment mechanically and therefore, the impugned order stood vitiated. Consequently he allowed the revision. It is that order of 17/12/1994, passed by the learned Sessions Judge, Ghazipur, legality whereof has been challenged Bhrigu Nath in this revision petition.
(2.) I have heard the learned counsel for the parties and have gone through the record of the case. Learned counsel for the petitioner has vehemently argued that the revision before the learned Session Judge was not maintainable, inasmuch as the order of attachment under Section 146(1) Cr. P.C. was an interlocutory order. In support of this argument he has relied upon the rations laid down in Indra Deo Pandey v. Smt. Bhagwati Devi, 1981 ACC 316 (DB).
(3.) I have carefully examined the said judgement. After considering (i) Smt. Prem Lata v. Ram Lubhava, 1978 ACC 336; (ii) Sohan Lal Barman v. State, 1977 ACC 10 (Sic) (iii) Chandu Naik v. Sita Ram, AIR 1978 SC 333 (iv) Amarnath Chawla v. State of Haryana, AIR 1977 SC 2185; (v) Madhu Limaya v. State of Maharashtra, AIR 1978 SC 47; (vi) V. C. Shukla v. State, AIR 1980 SC 962; (vii) Mathura Lal v. Bhanwarlal, AIR 1978 SC 57 (Sic), the Division Bench of this Court held as under :- "The legal position that emerges from various observations made in the cases mentioned above, therefore, is that for the purposes of Section 397(2) order of purely interim or temporary nature which does not decided or touch the important rights or liabilities of parties would be considered to be interlocutory order within the meaning of Section 397(2) of the Code. An order which substantially affects the rights of the accused or decided certain rights of the parties cannot be said to be interlocutory order as contemplated by Section 397(2) of the Code. Further, the order rejecting the plea of a party on a point which when accepted will conclude the particular proceedings will certainly be not an interlocutory order a fortio rari an order which concludes a proceedings would also not be an interlocutory order. Section 145 of the Code enable an Executive Magistrate to, if he is satisfied from a report of a police officer or upon other information that a dispute likely to cause breach of peace exists concerning any land etc., make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend the Court in person or pleader and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. The Section has been enacted with a view to prevent breach of peace which is likely to arise as a result of a dispute relating to land etc. and the Magistrate has been empowered to find out as to which party had been in actual possession of the property and to see that such possession is not disturbed except by taking recourse to proceedings in accordance with law. For this purpose he has to hear the parties and to take evidence and to hold some enquiry which in the very nature of things takes time. Section 146 accordingly enables a Magistrate to, in a case of emergency attach the subject of dispute and arrange for its management in the interest of the party which may be found to be in its possession. While making an order under Section 146 for attaching the property in dispute the Magistrate is not required to make any inquiries or to adjudicate the rights of any person to remain in possession of the property in dispute or to make any other adjudication of any other type. All that he has to be satisfied is that there is a case of emergency namely, that breach of peace is likely to occur even before he has been able to hold a proper enquiry with regard to possession under Section 145 of the Code and if that be so he can take steps to attach the properties and to arrange for its management with the twin object of avoiding breach of peace being committed by either of the parties and to safeguard the interest of the party which may be found to be entitled to its possession either in accordance with final orders made under Section 145 or a decision given by competent civil Court. Viewed in this light, it is apparent that the order for attachment of property under Section 146(1) of the Code made during the pendency of the proceedings under Section 145 is an order purely of an intermediate or temporary nature. It neither decides nor purports to affect any legal right of any of the parties. The order is made for the purpose of effective adjudication of proceedings initiated under Section 145 of the Code. It does not result in the disposal of any part of the controversy between the parties or the proceedings under Section 145. In such a case a question of proceedings being concluded one way or the other if the plea of one party or the other is accepted arises. Applying the test as laid down by the Supreme Court in the case of Amar Nath Chawla v. State of Haryana, AIR 1977 SC 2185, in the light of the observations made by that Court in Madhu Laimaye's case, AIR 1978 SC 47 (supra). I am of the opinion that the order made during the pendency of proceedings under Section 145 of the Code for attaching the property in dispute under Section 146 of the Code is purely an interlocutory order within the meaning of Section 397(2) of the Code.";