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Johari and ors. Vs. Kirori and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 151 of 1978
Judge
Reported in1984WLN(UC)324
AppellantJohari and ors.
RespondentKirori and ors.
DispositionPetition dismissed
Cases ReferredSita Ram v. Ghisa Ram
Excerpt:
.....section 146 cr. pc is not an interlocutory order and the revision which was preferred before the learned sessions judge. sawairaadhopur and which was decided be him vide his judgment dated 5-4-1978, was maintainable.;(b) criminal procedure coce - sections 145 & 146(1)--observation made by sessions court dbout possession is irrelevant--held, it should not be taken into consideration while deciding matter.;i feel that this observation about the possession is irrelevant so far as the decision of revision by learned sessions judge was considered. he should not have coticnented in his judgment about possession on his disputed land as this matter was still pending and was to be decided by learned magistrate in sub-section (4) of section 145 cr. pc. thus this observation of id. sessions..........point which needs decision according to learned counsel for the petitioner is whether the sessions judge while hearing revision petition against the order under sub-section (1) of section 146 cr. pc has jurisdiction to decide the question of possession of any party within two months prior to the passing of preliminary order under section 145 cr. pc.4. these two points as referred above are really legal points and need decision. while hearing arguments, it was brought to my notice that the similar point was involved in d.b. criminal revision petition no. 298/ 1975 sita ram v. ghasi ram and ors. which has been decided by division bench of this court on 6-12-1979. the present case is completely covered by the decision of the division bench of this court in sita ram v. ghasi ram and ors......
Judgment:

G.K. Sharma, J.

1. This revision petition has been filed by Johari and Moolya against the order of learned Sessions Judge, Sawai Madhopur, dated 5-4-1978 whereby he passed the following order:

I, therefore, partly accept the revision and while maintaining the preliminary order passed by the learned Additional District Magistrate, Sawaimadhopur, on 28-2-19?8, set aside the order of attachment of the land in dispute. However, I think it proper to send the case to the District Magistrate, Sawaimadhopur with a direction to consider the question of emergency after hearing both the parties and looking into all such material as any be produced before him and then to pass appropriate orders with reasons in accordance with law. However, in order to avoid any possibility of any untoward happening pertaining to the law and order situation I farther direct that the attachment of the land in dispute and the arrangement made, if any, for the custody and management thereof shall remain in operation until the question as to existence or non-existence of the emergency is decided by the District Magistrate, Sawaimadhopur, after hearing the parties. In case the learned District Magistrate decides not to attach the disputed property, the orders of this Court regarding continuance of attachment as a temporary measure shall stand vacated, The record of the case be sent to the learned District Magistrate, Sawaimadhopur, immediately. The parties are directed to appear in the court of District Magistrate, Sawaimadhopur on 6th April, 1978.

2. Without mentioning the facts of this case in detail, it is suffice to mention that a case under Section 143 Cr. PC. was pending in the court of Addl. District Magistrate, Sawaimadhopur, on 28-2-19 78. After having the record of the Tehsildar and Executive Magistrate, Gangapur City and the SHO Gangapur City, learned Addl. Distt. Magistrate, found there is an apprehension of breach of place between the parties, and he found in the interest of justice to proceed under Section'45 Cr. PC. A notice was issued for this, under Section 145 Cr. PC on 28-2-1978. On the same day while feeling emergency as mentioned under Section 146(1) Cr. PC, learned Addl. Distt. Magistrate, passed an under attaching the disputed land along with the crop standing thereon and under Section 145 Cr-PC passed an order appointing Tehsildar, Gangapur City as Receiver of this crop, Against this order, Krori and others preferred a revision petition before learned Sessions Judae, Sawaimadhopur and teamed Sessions Judge vide his order dated 5-4-1978, disposed the revision petition and remanded the case to the learned District Magistrate Sawaimadhopur for disposal. The direction given by learned Sessions Judge in the order has been mentioned above, against the order of learned Sessions Judge the present revision petition has been preferred on behalf of Johari and Muliya.

3. Learned Counsel for the petitioner has argued that there are only two legal points involved in this revision petition which needs decision by this Court so that there would be guidance to subordinate courts in such matters. The first point is whether a revision lies before the Sessions Court under Section 397 Cr. PC with regard to an order passed under Sub-section (1) of Section 146 Cr. PC. specially when the property has been attached in a case finding one of emergency. The second point which needs decision according to learned Counsel for the petitioner is whether the Sessions Judge while hearing revision petition against the order under Sub-section (1) of Section 146 Cr. PC has jurisdiction to decide the question of possession of any party within two months prior to the passing of preliminary order under Section 145 Cr. PC.

4. These two points as referred above are really legal points and need decision. While hearing arguments, it was brought to my notice that the similar point was involved in D.B. Criminal Revision Petition No. 298/ 1975 Sita Ram v. Ghasi Ram and Ors. which has been decided by Division Bench of this Court on 6-12-1979. The present case is completely covered by the decision of the Division Bench of this Court in Sita Ram v. Ghasi Ram and Ors. reported in 1979 Cr. L.R. (Supl.), Page 20.

5. I have gone through the judgment of the Division Bench of this Court in Sitaram v. Ghasiram and ors. (Supra). In this case also similar point was involved. In a matter of an order of attachment under Sub-section (1) of Section 145 Cr. PC a revision petition was preferred before the Sessions Judge and it was decided by the Sessions Judge that the order under sub Sec (1) of Section 146 Cr PC was an interlocutory order and hence no revision is maintainable. Against that order, the D B. Cr. Revision No. 298/1975. Sitaram v. Ghasiram and Ors. was preferred and while discussing the relevant provision of Sections 145 and 146 Cr. PC, it was held that the order under Sub-section (1) of Section 146 of Cr. PC. is not an interlocutory order and hence the revision filed before learned Sessions Judge was maintainable. In view of the decision of Division Bench of this Court, which is binding on the Single Bench need not remain row to discuss elaborately and decide the matter afresh. While going through the judgment of Division Bench of this Court to which I respectfully agree and am of the same view that this order under Sub-section (1) of Section 146 Cr. PC. is not an interlocutory order and the revision which was preferred before the learned Sessions Judge, Sawaimadhopur and which was decided by him vide his judgment dated 5-5-1978, was maintainable.

6. Regarding the second point, whether the Sessions Judge has jurisdiction while deciding revision petitions against the order of attachment under Sub-Section (1) of Section 146 Cr. PC to decide the question of possession of the parties within two months from the date of preliminary order passed by the Magistrate under Section 145 Cr. PC. While arguing this point, learned Counsel for the petitioner brought to my notice the para in which the question of possession has been decided by the learned Sessions Judge,

7. The relevant para reads as under:

lkjs nLrkost dks ns[kus ds ckn eS bl ckr ls lger gwa fd izkjfEHkd vkns'k vkSj dqdhZ ds fnu rFkk mls nks ekg iwoZ fooknxzLr Hkwfe ij ikVhZ uEcj 2 dk dCtk Fkk A

8. In the subsequent para, learned Sessions Judge has mentioned that the he perused certain documents which were produced before him along with the revision. These documents were not submitted by the party before the Magistrate when an order of attachment or the preliminary order under Section 145 Cr. PC was passed, however, after considering the documents, learned Sessions Judge, in his judgment remarked as mentioned above.

9. Learned Counsel for the non-petitioners Shri B.L. Bardar has contended that learned Sessions Judge has not given any finding on the possession over this land within two months of the preliminary order passed by learned Magistrate. He has referred the operative portion of the judgment and argued that the case has been remanded with a direction to consider the question of emergency after hearing both parties and looking into ail such material as may be produced before him and then to pass an appropriate order according to law. Thus learned Sessions Judge has not given in this operative portion the finding regarding the possession of the either party on the disputed land. I have considered this aspect. This is correct that in very specific words it has not been mentioned in the operative portion of the judgment that such and such party is in possession within two months prior to issuing a preliminary order of learned Magistrate. But there is some observation in the body of the judgment and I feel that this observation might mislead the learned Magistrate while deciding the question of emergency as directed by learned Sessions Judge, so I feel that this observation about the possession is irrelevant so far as the decision of revision by learned Sessions Judge was considered. He should not have commented in his judgment about the possession on this disputed land as this matter was still pending and was to be decided by learned Magistrate in Sub-section (4) of Section 145 Cr. PC. Thus this observation of learned Sessions Judge being irrelevant should not be taken into consideration by learned Magistrate while deciding the matter as directed by learned Sessions Judge. I would like to mention here that whatever documents submitted by either party before learned Sessions Judge in the revision-petition should be sent to learned Magistrate, so that there would be a guidance to decide the question of emergency and would be helpful to him, while hearing both parties.

10. Learned Counsel for the petitioner Shri P.N. Agrawal has argued that no doubt, there is a decision of our Division Bench in Sitaram v. Ghasi Ram and Ors. (Supra) with regard to the question of attachment order in case of emergency as indicated under Sub-section (1) of Section 145 Cr. PC while dealing with a case under Section 145 Cr. PC but ha has sited before me certain cases of Allahbad High Court and Punjab and Haryana High Court. The following cases were cited before me. (I) Nathuni Ram and Ors v. State of UP and Anr. (1983) Allahabad LJ 854 (2) Ramdeo and Ors v. State of UP and Ors 1978 Cr. LJ 1822, and (4) Shishu and Ors v. State of Haryana and Ors. 1982 Cr. LJ 124.

11. While citing all these cases, it was argued that in these cases it has been held that the order in case of emergency passed u/sub-s. (1) of Section 146 Cr. PC is an interlocutory order and against such order no revision petition lies before the Sessions Judge. It was also contended that our Division Bench has no doubt taken a contrary view. After the decision of Sita Ram v. Ghlsa Ram by Division Bench of this Court, Allahabad High Court and Punjab Haryana High Court have decided the case, taking the contrary view to cur High Court that such order is an interlocutory order. As there are contrary decisions in this respect of other High Court the matter is of great importance and it was argued that this Court may refer the case to a larger heath so that in view of the cases cited by Mr. P.N. Agarwal, a proper decision would be taken and correct principles of law would be laid down.

12. Shri BL. Bardar opposes that in the case of Sita Ram v. Ghasi Ram (supra), the Division Bench of this Court has considered the provisions of Sections 145 and 146 Cr. P.C. which were in the old Cr. P.C. as well as in the New Cr. PC. In the old Cr. P.C the point of attaching the property in case of emergency was incorporated under Section 145 Cr. P.C. itself but after the amendment of Cr. P.C. the attachment provision has been incorporated under Section 146 Cr. P.C. by adding a new section and in this Section 146(1) Cr. P.C. The contingencies have been mentioned under which the attachment order can be passed. The Division Bench has discussed in the judgment the provisions of attachment in the old. Cr. P.C. and also in the new Cr. P.C after its amendment in the year 1973. They have elaborately considered the aspect under what circumstances an attachment order could be passed in the old Cr. P.C. and under what circumstances it could be passed in new Cr. P.C. They have also considered keeping in view both provisions of old Cr. PC. and new Cr. PC and after discussing then held that the order passed in sub Section (1) of Section 146 Cr. PC in the contingency of emergency is not an interlocutory order but a final order and as such revision lies against that order. I need not repeat the reasonings adopted by Hon'ble Judges of Division Bench of this Court while deciding the case of Sita Ram v. Ghasi Ram. It is suffice to mention that the present matter is fully covered by the decision of this Court by the Division Bench to which I respectively agree. As my view is also same as has been enunciated in the judgment by the Division Bench, I do not feel to refer the matter to larger bench, hence the argument of learned Counsel for the petitioner Shri B.N. Agrawal is not accepted. I do not feel the necessity to refer the matter for decision to a larger bench.

13. In face of the decision of Sita Ram v. Ghisa Ram (Supra) decided by the Division Bench of this Court, the present revision petition has no force. Learned Sessions Judge has not committed any error in deciding the revision petition. The order of learned Sessions Judge is maintained subject to the observation regarding possession on the disputed land as observed by learned Sessions Judge.

14. In the result the revision petition is dismissed.


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