M. B. SHARMA, J. - (1.) THIS Misc. Petition under Section 482 Cr. P. C. arises in the following circumstances.
(2.) THE dispute relates to shop No. 50 situated at Gangori Bazar, Jaipur. Besides shop in dispute there is another shop No. 48 also situated in the same market. Rather these two shops are on either side of the main gate of the house. Late Shri Ratanlal and Gokulchand Jaipuria, were the real brothers. Though Murarilal, respondent No. 6, contests that shop number 50 did go in partition to Ratanlal and shop No. 48 went to Gokulchand but this fact is not contested by the other parties to this petition. In other words, except Murarilal, one of the sons of Gokulchand, who contests that Late Shri Ratanlal and Gokulchand were the owners of shop No. 50 and 48 respectively and a partition took place in between them, the other parties do not contest it. In shop No. 48, a business in partnership in the name of M/s. Sat Vyavharik and Company was going on of which the both late brothers were the partners. The case of the petitioners is that so far as shop No. 50 is concerned, they alone were in possession of it and were carrying on business in it in the name of M/s Sat. Vyavharik Cloth House and three other names namely Om Prakash Jaipuria and Co. , Arun Stores and Anup Distributing Centre. The case of Hansraj and ors. sons of late Shri Gokulchand is that shop No. 50 was being used as a godown for keeping the goods of M/s. Sat Vyavharik & Co. and the partnership concerned, M/s. Sat. Vyavharik & Co. was in possession of it also. It appears that Lal Imli is a product of Kanpur Woolen Mills,-a Government of India, undertaking and it appointed Om Prakash and Arun Kumar as organisers for their products for Rajasthan and inauguration in shop number 50 of that business was to take place. Non-petitioners No. 2 to 9 filed an application on 18th Oct. , 1985, under Section 145/146 Cr. P. C. wherein a case was set-up that there was an apprehension of the breach of the peace in respect of possession of shop number 50 and prayed that the same may be attached. The application addressed to the City Magistrate, was sent to the police station concerned for enquiry and police station, Kotwali, submitted its report on January 2, 1986. The learned City Magistrate made a preliminary order under Sub-section (1) of Section 145 Cr. P. C. and called upon the parties to produce their respective evidence regarding possession of shop No. 50. There has been no attachment of the subject of dispute (shop No. 50) yet under Sub-section (1) of Section 146 Cr. P. C. In this petition the order under Sub-section (1) of Section 145 Cr. P. C. made by the learned City Magistrate on March 10,1986 has been challenged. A preliminary objection has been raised by Mr. Bhandari, learned counsel for the non-petitioners No. 2 to 9, about the maintainability of this petition under Sec. 482 Cr. P. C. His contention is that the inherent powers conferred on this court under Sec. 482 Cr. P. C. can and should only be exercised in case a revision does not lie. According to him a revision lies against an order made under Sub-section (1) of Section 145 Cr. P. C. and therefore, this petition is not maintainable, it is also contended by him that this petition cannot and should not be treated as a revision petition under Sec. 397 Cr. P. C. because the jurisdiction of this court under that Section is concurrent with that of Sessions Judge and therefore, the petitioner should have first filed a revision petition before the learned Sessions Judge, Jaipur City, Jaipur.
(3.) A look at sub-section (5) of Section 145 Cr. P. C. will show that subject to cancellation of order made under Sub-section (1) of Section 145 Cr. P. C. as provided therein, the order of the learned Magistrate, shall be final. Under Sub-section (5) of Section 145 Cr. P. C. nothing in Section 145 shall preclude, any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed and in such case the Magistrate, shall cancel his said order, and all further proceedings thereon shall be stayed but if a party does not take any action under Sub-section (5) of section 145 Cr. P. C. the order of the Magistrate, made under Sub-section (1) section 145 Cr. P. C. shall be final. Therefore, notwithstanding the fact that after having made an order under Sub-section (1) of section 145 Cr. P. C. the Magistrate is required to decide whether any and which of the parties was at the date of the order made by him under sub-sec. (1) in possession of the subject of dispute in my opinion, an order under sub-sec. (1) of sec. 145 Cr. P. C. is not an inter-locvtory order within the meaning of section 397 (2) Cr. P. C. and a revision petition shall lie against an order made under Sub-section (1) of Section 145 Cr. P. C. In a Full Bench decision of Jammu and Kashmir High Court in the case of Brij Lal Chakoo. Vs. Abdul Ahad Nishati (1), it has been held that a preliminary order made under Sub-section (l) of section 145 Cr. P. C. and attachment orders arc not interlocutory order and a revision petition will lie. I am, therefore, of the opinion that a revision petition lies against an order made under Sub-section (1) of section 145 Cr. P. C. There cannot be a dispute that inherent powers of this court under Section 482 Cr. P. C. can and should only be invoked in case an appeal or revision does not lie to this court, and this proposition of law is so well established that it needs no reference to any decided case. The question is as to whether this Misc. Petition be treated as revision petition or not. I have already referred to the preliminary objection raised by Mr. Bhandari, learned counsel for the respondent that the jurisdiction of this Court as well as the Court of Sessions is concurrent and, therefore, the revision should first be filed to that court. In my opinion, this objection has no force. There is the basic difference in the powers of revision under section 435 Cr. P. C, 1898 and under Section 397 of the Cr. P. C, 1973. For the sake of brevity the earlier one shall be referred to as the old Code and the later as the New Code. Under Section 435 Cr. P. C of the Old Code the jurisdiction of the Sessions Judge and the High Court was no doubt, concurrent but there was no bar that if a revision petition has been filed before the Sessions Judge or the District Magistrate, and has been disallowed a further revision to High Court will not lie. In other words, there was no bar to a second revision to the High Court by a unsuccessful party in the court of Sessions Judge or the District Magistrate. The only bar under sub-section (4) of Section 435 Cr. P. C (old Code) was that if an application under Section 435 Cr. P. C. has been made either to the Sessions Judge or District Magistrate, no further application shall be entertained by the order of them. Under Section 397 Cr. P. C. (New Code) the High Court or any Sessions Judge, has been conferred the powers of revision and it may call for and examine the record of any proceeding before any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, any may, when calling for such record direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his bound pending the examination of the record. There is a clear bar contained in sub-section (3) of section 397 of the new Code which provides that "if any application under sub-section (1) of Section 397 has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the order of them. " It can therefore, be said that the use of the words "has been made by any of the person either to the High Court or to the Sessions Judge," in sub-sec. (3) of Sec. 397 of the New Code, leaves no doubt that an option has been given to a party either to file an application for revision under Sec. 337 (1) of the New Code, to the High Court or to the Sessions Judge. If a revision petition is filed before the High Court it cannot be dismissed or the court cannot refuse to entertain it on the ground that the parties must first file a revision petition to the Sessions Judge. The rulings on Sec. 435 Cr. P. C. (Old Code), have no relevancy to the provisions of sub-section (3) of Section 397 of the Cr. P. C. (New Code ). There is no substance in the arguments of Mr. Bhandari, learned counsel for the respondents No. 2 to 9 that a right of revision is denied to him to the High Court in case, the revision is directly entertained by this Court and is allowed. We have to go by provisions of law and as stated earlier the option lies with the parties either to file a revision petition to the Sessions Judge or to this Court and if party chooses to file a revision to this court, the court cannot refuse to entertain it. ;