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Babasaheb Tukaram Nale and ors. Vs. Subhedar Tukaram Phadtare and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petition No. 66 of 1984
Judge
Reported in1985(2)BomCR196; (1985)87BOMLR125
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 146(1), 397 and 397(2)
AppellantBabasaheb Tukaram Nale and ors.
RespondentSubhedar Tukaram Phadtare and ors.
Appellant AdvocateM.A. Rane, Adv.;R.Y. Mirza, P.P.
Respondent AdvocateRajiv S. Mohite, Adv. for respondents 1 to 6
DispositionPetition dismissed
Excerpt:
.....cr. l.j. 1492 referred to. - - curiously on the very next day, that is on 18th august, 1983, the learned magistrate passed on order, directing the resealing of the house inasmuch as he was satisfied that 'a dispute will cause breach of the peace and having regard to the complicated nature of rival plans. 142 of 1983) to the sessions court for setting aside the learned magistrate's order dated 18th august, 1983. the learned additional sessions judge allowed this revision on 3rd february, 1984 on the ground that the order was bad as having been passed without notice to party no. although it cannot be laid down as an absolute proposition that under no circumstances whatever can an order of sealing be made without notice to the affected party, it will be appreciated that normally such an..........on 12th july, 1982, the police sealed the disputed property by themselves without any order of the learned magistrate. ex facie, this action is not supported by an provisions of law. on 15th july, 1982, party no. 1 moved the magistrate to reseal the property. on 3rd august, 1982, the learned magistrate directed that the disputed property be restored back to party no. 1. on 6th august, 1982, the learned magistrate passed a composite order under section 145(1) and section 146(1), calling upon the parties to submit their respective written statements before him and also directing attachment of the property by sealing it. on 9th august, 1982, the disputed property actually came to be sealed again in execution of the aforesaid order dated 6th august, 1982. on 27th september, 1982, the learned.....
Judgment:

S.N. Khatri, J.

1. This is a petition under Article 227 of the Constitution of India and under section 482 Cri.P.C. by original Party No. II in proceedings under section 145 Cri.P.C. challenging the order of the learned Additional Sessions Judge, Satara, passed in Criminal Revision Application No. 142 of 1983.

2. The material facts are these: On 30th June, 1982, the Phalton Police moved the learned Executive Magistrate, Phalton under section 145 Cri.P.C. on the allegation that there existed a dispute between the present petitioners (Party No. II) and the respondents (party No. I) in respect of a house bearing Gram Panchayat No. 167 and an open site bearing Gram Panchayat No. 165 of village Gunavare, which dispute was likely to cause breach of the peace. Thereafter on 12th July, 1982, the police sealed the disputed property by themselves without any order of the learned Magistrate. Ex facie, this action is not supported by an provisions of law. On 15th July, 1982, party No. 1 moved the Magistrate to reseal the property. On 3rd August, 1982, the learned Magistrate directed that the disputed property be restored back to party No. 1. On 6th August, 1982, the learned Magistrate passed a composite order under section 145(1) and section 146(1), calling upon the parties to submit their respective written statements before him and also directing attachment of the property by sealing it. On 9th August, 1982, the disputed property actually came to be sealed again in execution of the aforesaid order dated 6th August, 1982. On 27th September, 1982, the learned Magistrate passed the final orders under section 145(6) holding that Party No. 1 was in possession of the disputed property on the date of the preliminary order and directing restoration of possession to them. It appears that in pursuance of this order, the possession of the disputed property was actually made over to party No. 1 on 29th September, 1982.

3. Party No. II, the present petitioners, approached the Sessions Court, Satara in revision being Cr. Rev. Application No. 146 of 1982 (wrongly mentioned as Cr. Rev. Application No. 346 of 1982 in the Sessions Court's Judgment). The Sessions Court set aside the order of the learned Magistrate dated 27th September, 1982 on the ground that he had not afforded sufficient opportunity to the parties to lead their evidence. The case was remanded back to the learned Magistrate for a fresh disposal after giving opportunity to both sides to lead oral evidence. The Sessions Court also fixed 25th August, 1983 as the date on which the parties were to appear before the learned Magistrate.

4. On 3rd August, 1983, party No. II again moved the learned Magistrate for resealing the disputed property and handing over its possession to them (Party No. II). The learned Magistrate issued a notice to party No. 1 on 5th August, 1983. This notice directed party No. 1 to appear before him on 17th August, 1983 in connection with the proceedings remanded by the Sessions Court. Here it may be particularly noted that the notice did not make any reference to the application of party No. II dated 3rd August, 1983 for resealing of the property. Thereafter on 10th August, 1983, the learned Magistrate passed another order purporting to be one under section 145(1) Cri.P.C. directing both parties to appear before him on 17th August, 1983 for giving oral and written evidence with regard to the subject matter of the dispute'. It is difficult to understand why this order was again passed by the learned Magistrate under section 145(1). On 17th August, 1983, the Advocates of both sides appeared before the learned Magistate, who at the request of the Advocate of party No. 1 adjourned the matter to 25th August, 1983, the day which was already fixed by the Sessions Court for parties appearance before the learned Magistrate. Curiously on the very next day, that is on 18th August, 1983, the learned Magistrate passed on order, directing the resealing of the house inasmuch as he was satisfied that 'a dispute will cause breach of the peace and having regard to the complicated nature of rival plans.' Although the learned Magistrate has not indicated the provisions of Cri.P.C. under which he passed his order, it will have to be presumed to do so under section 146(1). We may note that this order was passed by him ex parte without giving any notice to party No. 1.

5. On 24th August, 1983, Party-I preferred a revision (being Cri. Rev. Application No. 142 of 1983) to the Sessions Court for setting aside the learned Magistrate's order dated 18th August, 1983. The learned Additional Sessions Judge allowed this revision on 3rd February, 1984 on the ground that the order was bad as having been passed without notice to Party No. 1 and also because there were no materials to make out a case of emergency. The learned Magistrate's order of sealing was according set aside. It is this order which is challenged before me now by Party No. II. While issuing the Rule, my learned brother Sharad Manohar, J., has directed the property to remain under seal.

6. Shri Rane, who appears for Party No. II, has advanced two main submissions. In the first place, he urges that the learned Additional Sessions Judge was in error in entertaining the revision from the order of the learned Magistrate dated 18th August, 1983, which was interlocutory. His second contention is that the learned Magistrate's order directing attachment of the property is sound on merits in view of the existence of emergency. I do not find any substance in either of these contentions. Reasons, in brief, follow:

7. Bar to the maintainability of revision under section 397(2) Cri.P.C. was not pleaded by party No. II before the learned Additional Sessions Judge. It is perhaps now too late for them to raise it in this Court for the first time. Apart from this position, I feel that order under section 146(1) Cri.P.C. is open to revision, inasmuch as it is an order which substantially affects the rights of the party, who as a consequence of the order is liable to lose possession of property. I may only refer to a decision of the Supreme Court relied upon by Shri Rane himself and : 1977CriLJ1891 (Amarnath and others v. State of Haryana and others. As observed there, the term 'interlocutory order' in section 397(2) has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Any order which substantially affects the of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision against that order, because that would be against the very object which formed the basis for insertion of this particular provision in section 397. As the order under section 146(1) substantially, affects the rights of the parties, particularly of the party who is dispossessed, the order is non-interlocutory and would be open to revision. The first contention of Shri Rane is accordingly repelled.

8. Coming to the merits of the case, it will be seen that the learned Magistrate has prevaricated from the beginning to the end of the case. The narration of the history of the case in paragraphs 2 to 5 (supra), will show that he did not handle the case with the requisite firmness and went on passing orders and reversing them, without due regard to the relevant provisions of law. As rightly observed by the learned Additional Sessions Judge, there is nothing on the record to show that when the parties appeared before the learned Magistrate on 17th August, 1983 the question about the sealing of the property under section 146(1) came up for the debate before him. Although it cannot be laid down as an absolute proposition that under no circumstances whatever can an order of sealing be made without notice to the affected party, it will be appreciated that normally such an order being of an exceptional nature, would not be made without notice to the other side. In this regard, I may with advantage refer to a decision of this Court reported in Laxman Bhikaji Pawar and others v. Bahimkhan Balekhan Dalwai and others. It is an admitted position that by his order dated 27th September, 1982 the learned Magistrate upheld the possession of Party No. 1 and actually put them in possession of the property. So it would not have been in the fitness of things for him to disturb that position without reasonable notice to them. The element of emergency has not been, as, rightly observed by the learned Additional Sessions Judge, made out in the present case. At least the learned Magistrate's order does not expressly indicate so. The order of the learned Magistrate dated 18th August, 1983 is thus clearly erroneous and was rightly set aside by the learned Additional Sessions Judge. No further interference with the order of the learned Additional Sessions Judge is called for by this Court.

9. The result is that there is no substance in the present petition which stands dismissed. Rule discharged.

10. Shri Rane states that the Civil Court is not passing any orders in the suit filed by Party No. II against Party No. 1. I may only observe that the Civil Court need not treat the pendency of the present proceedings under section 145 Cri.P.C. as a constraint on it in passing necessary orders according to law, in the suit before it.


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