- (1.) VIJAY Kumar Verma, J. Challenge in this revision is to the judgment and order dated 21-4-2005 passed by Sri D. K. Tyagi, the then Additional Sessions Judge, Court No. 5, Ghazipur, in Criminal Revision No. 458 of 2004, Ravindra Nath Vishwakarma v. State of U. P. and Anr. , whereby allowing the revision, the order dated 1-11-2004 passed by the S. D. M. Sadar, Ghazipur, under Section 146 (1), Cr. P. C. has been set aside.
(2.) THE relevant facts as emerging from the record are that Narendra Nath Vishwakarma had moved an application in the Court of S. D. M. Sadar, Ghazipur to initiate the proceeding under Section 145, Cr. P. C. in respect of the house situated in Mohallah Saklenabad, P. S. Kotwali, District Ghazipur. On that application, a report was submitted by S. H. O. P. S. Kotwali, Ghazipur on 26-7-2004, in which it was stated that Sri Krish Murari Vishwakarma and Sri Ashok Kumar Vishwakarma r/o village Pasidih alias Bikapur, Paragana and District Ghazipur, presently residing at Maru chak pasi Line District Bhagalpur (Bihar), were the owners of the house situated in Mohallah Saklenabad, P. S. Kotwali. District Ghazipur. THEy had executed a Mukhtarnama on 14-6-1995 regarding that house in favour of Nagendra Nath Vishwakarma, but in contravention of that Mukhtarnama, Ravindra Nath Vishwakarma has illegally occupied the house, due to which there is tension between the parties. Being satisfied with the report of S. H. O. , P. S. Kotwali, Ghazipur, the S. D. M. Sadar, Ghazipur, passed preliminary order under Section 145 (1), Cr. P. C. on 1-11-2004 in Case No. 26 of 2004 and issued notice to the parties to appear in his Court and file documents in respect of ownership and possession over the disputed house by 19-11-2004. On the same date viz. 1-11-2004, an order under Section 146 (1), Cr. P. C. was also passed by the learned S. D. M. , whereby the disputed house was attached and S. H. O. P. S. Kotwali was directed to give the house in the supurdagi of some neutral person. Feeling aggrieved by the order of attachment of the disputed house, Ravindra Nath Vishwakarma (opposite party No. 2 herein) preferred Criminal Revision No. 458 of 2004, which has been allowed vide impugned judgment dated 21-4-2005, hence this revision. I have heard Sri Ankit Gaur, learned Counsel for the revisionist, learned A. G. A. for the state of U. P. (opposite party No. 1) and Sri A. K. Singh, Advocate, holding the brief of Sri R. K. Yadav, learned Counsel for opposite party No. 2 Ravindra Nath Vishwakarma. Arguments on the point of maintainability of the revision against preliminary order under Section 145 (1), Cr. P. C. and order of attachment under Section 146 (1), Cr. P. C. were only heard and merit of the case was not considered. Placing reliance on the case of Maan Babu Dubey v. State of U. P. and Anr. , 2006 (2) JIC 362 (All) : 2006 (55) ACC 489. was straneously contended by learned Counsel for the revisionist that revision against the order dated 1-11-2004 passed by the S. D. M. Sadar, Ghazipur, under Section 146 (1), Cr. P. C. , thereby, making attachment of the disputed house during pendency of the proceeding under Section 145, Cr. P. C. was not legally maintainable, being barred by the provisions of Section 397 (2), Cr. P. C. , and the learned lower Revisional Court has committed Jurisdictional error by entertaining and allowing the revision and hence the impugned judgment being illegally is liable to be set aside on this ground alone. The submission made by learned Counsel for the revisionist was that rights of the parties have yet not been decided b the S. D. M. Sadar, Ghazipur, while passing the order dated 1-11-2004, under Section 146 (1), Cr. P. C. and hence the order being interlocutory in nature is not amenable to revisional jurisdiction in view of the bar created by sub-section (2) of Section 397, Cr. P. C.
(3.) ON the contrary, it was submitted by the learned Counsel for the opposite party No. 2 that rights of the parties are seriously affected by making attachment under Section 146 (1), Cr. P. C, hence the order of attachment, which comes in the category of intermediate orders, can be challenged in revision under Section 397, Cr. P. C. Rival contentions raised by the learned Counsel for the parties, I find force in the contention of the learned Counsel for the revisionist that revision against the order under Section 146 (1), Cr. P. C. is nor legally maintainable. This Court in the case of Maan Babu Dubey v. State of U. P. (supra) has held that revision against preliminary order passed by the Executing Magistrate under Section 145 (1), Cr. P. C. and order of attachment under Section 146 (1), Cr. P. C. is not maintainable, being barred by sub-section (2) of Section 397, Cr. P. C. The matter of maintainability of the revision against preliminary order passed by the Executive Magistrate under Section 145 (1), Cr. P. C. and order of attachment under Section 146 (1), Cr. P. C. came up for consideration before the Division Bench of this Court in the case of Indra Deo Pandev v. Smt. Bhagwati Devi, 1981 (18) ACC 316. The Division Bench in that case held that the order of attachment of property under Section 146 (1), Cr. P. C. made during the pendency of the proceedings under Section 145, Cr. P. C. is an order purely of an intermediate or temporary nature, which cannot be challenged in revision. In the case of Indra Deo Pandey (supra), the Division Bench of this Court disagreeing with the law propounded by another Division Bench of this Court in the case of Sohan Lal Burman v. State of U. P. , 1977 (14) ACC 10, has held that the law laid down in Sohan Lal Burman (supra) could not be held to be good law any more. The following observations of the Division Bench in the case of Indra Deo Pandey (supra) are quite note worthy : "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 inquiry 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 two 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 effect 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. Accordingly applying the test laid down by the Supreme Court in the case of Amarnath Chawala v. State of Haryana (supra) in the light of the observations made by that Court in Madhu Limaye's case (supra) are, of opinion that an order made during the pendency of proceeding under Section 145 of the Code for attaching property in dispute under Section 146 (1) of the Code is purely an interlocutory order within the meaning of Section 397 (2) of the Code. ";