SAYED MOHMAD ZAYAUDDIN SHAH SAHIBMIYAN ALTI Vs. NOORBIBI ALIAS VAZIRANBIBI HASANBHAI

JUDGEMENT

(1.) This revision application arises out of an interim order passed by the Executive Magistrate Ahmedabad under sec 146 (1) of the Code of Criminal Procedure 1973 (hereafter referred to as the Code) and reversed by the learned Additional City Sessions Judge Ahmedabad in exercise of his revisional power. The question which is raised for my consideration is whether the interim order of attachment passed by the Executive Magistrate can be said to be an interlocutory order against which no revision application would lie under sec. 397 (2) of the Code or whether it is an order which though interim in nature can be revised in exercise of revisional powers under that section. Before I proceed to examine this question a few facts necessary for the purpose of appreciating the rival contentions raised on behalf of both the sides may be stated. The petitioner is the owner of residential premises bearing City Survey No. 3585 and Municipal Census No. 1976 (2) situated in Shahpur Ward No.2 in the city of Ahmedabad. The said premises were formerly let out to one Sarfubhai Miyabhai who died on 27-11-1979. According to the petitioner at the time of his death Sarfubhai handed over possession of the said premises to the petitioner. The petitioners case is that after the death of Sarfubhai opponent No. 1 who is the sister of Sarfubhai had requested him to allow her to stay in the said premises for some days so as to enable her to perform after death ceremonies of Sarfubhai. The petitioner had therefore allowed opponent No. 1 to occupy the said premises for some days only for the said purposes. After few days the petitioner requested opponent No. 1 to hand over vacant possession of the said premises but she refused to do so; and threatened him that in no circumstances she will hand over possession of the premises to the petitioner. According to the petitioner this dispute between him and opponent No. 1 had created such a situation that it would have caused immediate breach of peace. He therefore filed an application on 4-1-1980 against opponent No. 1 and one Ahmedhusain Hasambhai in the Court of the Executive Magistrate Metropolitan Area Ahmedabad for initiating proceedings under sec. 145 of the Code. The Executive Magistrate after considering the averments made in the application and the affidavits filed in support of the said application passed an order under sec. 145 (1) of the Code. Soon thereafter he also passed an order under sec. 146 (1) for attaching the said property on the ground that the case was one of emergency. By the said order of attachment the Executive Magistrate directed the police Inspector incharge of Karanj Police station to attach the said property and to hold the same till the competent Court determines the question as to who is entitled to possession thereof. Pursuant to the said order of attachment P. I. Karanj police station attached the said property and applied his lock and seals after removing opponent No. 1 from the said premises. Opponent No. 1 challenged the said order by filing Criminal Revision Application No. 20 of 1980 in the Court of the learned City Sessions Judge Ahmedabad. Before the learned Additional City Sessions Judge an objection was raised on behalf of the petitioner as regards maintainability of the revision application against the order passed by the Executive Magistrate in view of the bar contained under sec. 397 of the Code. The learned Judge however over ruled that objection proceeded to decide the revision application on merits; and ultimately passed an order dated 4 holding that the order passed by Executive Magistrate was not justified on facts and in the circumstances of the case. The learned Judge therefore allowed the revision application set aside the order passed by the Executive Magistrate and directed that the possession of the premises in question be handed over to opponent No. 1. This order passed by the learned Additional City Sessions Judge in revision application has been challenged by the petitioner in this Revision Application.

(2.) The first contention raised by Mr. Baqui the learned advocate appearing for the petitioner is that the order passed by the Executive Magistrate under section 145(1) is an interlocutory order and therefore the revision application filed by opponent No. 1 against that order in the Court of the learned City Sessions Judge was not maintainable in view of the clear provisions of section 398(2) of the Code. He has submitted that the order passed by the Magistrate is an interim order and would remain operative till the Executive Magistrate completed the enquiry under section 145 of the Code or till the competent Court decides the question as to who is entitled to the possession of the subject of dispute between the parties. Since the said order does not decide any question finally it must be held to be an interlocutory order. In support of his contention he has relied upon a decision of Allahabad High Court in PREMLATA V. RAM LUBHAYA 1978 CRIMINAL LAW JOURNAL 1822 ALLAHABAD HIGH COURT after referring to the provisions of sections 145 and 146 held that an order of emergence attachment made under the first clause of sub-section (1) of section 146 does not conclude the proceedings initiated under sec 145. It is a protective measure meant to prevent breaking of heads till such time as the Magistrate gives his decision under section 145 of the Cr. P.C. After referring to the decision of the Supreme Court in MADHU LIMAYE V. STATE OF MAHARASHTRA A.I.R. 1978 S.C. 47 and applying the test that An order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding will surely be not an interlocutory order within the meaning of sec. 397(2) Cr. P. C. held that a decision on the question whether the emergency attachment of the property is dispute is justifiable or not is not a matter which will conclude the proceedings under sec. 145 Cr. P. Code; and therefore such an order is an interlocutory order. It is important to note that the Allahabad High Court referred to and applied only one of the tests laid down by the Supreme Court in Madhu Limayes case (supra) whole deciding the question as to whether the order impugned in that case was an interlocutory order or not. The Supreme Court in Madhu Limayes case has clearly held that for the purpose of section 397(2) of the Code all the orders which are not final are not necessarily interlocutory orders. There may be an order passed during the course of a prcceeding which may not be final and bet it may not be an interlocutory order pure or simple. Some kinds of order may also fall in between the two. The Supreme Court has further observed that same kind of test as has been adopted for the purpose of section 115 of the Code of Civil Procedure should be applied for finding cut the real meaning of the expression interlocutory order occurring in sec. 397(23 of the Code. The Supreme Court has then referred to with approval its earlier decision in BALDEVDAS V. FILMISTAN DISTRIBUTORS (INDIA) PVT. LTD. A.I.R. 1970 S.C. 4G6 in which the test for the purpose of section 115 of the Code of Civil Procedure was laid down as under:

(3.) The second contention raised by him is that the order of attachment passed under sec. 146(1) is a discretionary order and it has to be passed by the learned Magistrate after arriving at a satisfaction regarding the necessity of passing the same. The question whether the material on the basis of which such aa order came to be passed is sufficient or not is not the question which can be gone into by the superior Court either in appeal or in revision. What is submitted by Mr. Baqui is that in this case on the basis of the averments made in the application and the affidavits filed in support thereof the learned Magistrate was satisfied regarding the necessity of passing the order of attachment; and therefore the learned Additional City Sessions Judge ought not to have reversed that order on merits. Mr. Baqui would have been right in his submission if the order had been passed after hearing the other side and or after exercising the discretion properly and judicially. If for example in a given case it is found that the learned Magistrate had not exercised the discretion in a judicial manner but had exercised it arbitrarily such an order can certainly be revised or interfered with in an appeal or a revision application as the case may be. If the Magistrate passes such an order in a mechanical way without appreciating the nature and consequences of the said order it can not be said that the learned Magistrate had exercised the discretion properly and judicially. If the relevant factors which should be present to the mind of the Magistrate at the time of passing such an order are overlooked or are not considered while passing the order such an order can be interfered with. In the instant case the impugned order was passed ex parte. It was passed inspite of the fact that in the application itself and the affidavits produced in support thereof it was disclosed that on the date on which the Court was called upon to pass an order under sec. 145(1) opponent No. 1 was in possession of the property which is the subject of dispute. Except a bare allegation that opponent No. 1 had engaged Gundas and that there was immediate possibility of breach of peace there was no other material to show that this was a case in which emergent action was called for. Even as regards these allegations it ought to have been appreciated that the possibility of breach of peace would have arisen only if the petitioner had tried to take possession forcibly from opponent No. 1 and not otherwise. If we look at the order passed by the Executive Magistrate it is apparent that the Magistrate has over. looked all these relevant factors and has passed the order without applying his mind. The learned Additional City Sessions Judge was therefore fully justified in setting aside the order passed by the Executive Magistrate and in ordering restoration of possession of the property to opponent No 1