JAI PRAKASH Vs. STATE OF U P

JUDGEMENT

(1.) K. K. Birla, J. This revisions arises out of the order passed on 8th December, 1987 allowing the criminal revision and dropping the proceeding under Section 145, Cr. P. C. passed by the VI Additional District and Sessions Judge, Muzaffarnagar.

(2.) THS necessary facts leading to this revision may be narrated :- One Kripa Ram was the bhumidhar of the plots Nos. 84, 516 and 514 situate in village Rohana Kalan. According to Jai Prakash and Shyam Lal, the present revisionists, Kripa Ram agreed to sell these plots to them by agreement to sell dated 27th November, 1976. By sale-deed dated 5th February, 1987 Kripa Ram sold those plots in favour of Ashok Kumar and others, the present opposite parties Nos. 2 to 13 (here in after referred as the second party ). By application dated 20-2-87 the present revisionists initiated the proceedings under Section 145, Cr. P. C. against the second party. The preliminary order in the case was passed on 28-3-87. Vide plaint dated 29-1-87 the present revisionists had already filed a suit for specific performance against Kripa Ram for specific performance of the afore said agreement. By the impugned order dated 4th August, 1987 the S. D. M. had ordered the attachment of the land in dispute under Section 146 (1) Cr. P. C. considering it to be a case of emergency. Being aggrieved Ashok and others perferred a revision before the Addl. Sessions Judge. One of the objections raised before the Revisional Court was that the impugned order is interlocutory order. The learned Addl. Sessions Judge was of the opinion that an order under Section 146 (1) is an interlocutory order but according to him, a civil suit was pending between Jai Prakash and Kripa Ram since January 1987, the petition under Section 145, Cr. P. C. was moved on 20-2-87 and as such the impugned order did not remain an inerlocutory order and a revision was maintainable against that order. He was further of the opinion that though in the suit the relief for possession has not been sought for, in the proceedings under Section 145, Cr P. C. both the parties claimed their respec tive possession. The second party is not a party in the civil suit. The second party has moved an application dated 25-8-87 under Order I, Rule 10 and Sec tion 151, C. P. C. for being impleaded in the suit. Its copy is on record of the 1st Revisional Court. The learned Addl. Sessions Judge was further of the opinion that such aggrieved persons could move the Civil Court for being impleaded and that the question of possession may be involved in the civil suit. On these premises, he was of the opinion that the proceeding under Section 145, Cr. P. C. were not maintainable in view of the principle Lald down in the case of Ram Sumer Puri Mahanih v. State reported in AIR 1985 Supreme Court 472. He, accordingly, ordered the dropping of the pro ceedings and for returning back the possession of the disputed land to the person from whose possession it was attached. Being aggrieved by this order Sri Jai Prakash and Shyam Lal have preferred this revision.

(3.) THE specific plea in this regard was not raised before the S. D. M. nor he considered this aspect while passing the order dated 4th August, 1987. But from the order of the 1st Revisional Court it appears that the question whether the present proceedings should be dropped on the facts of the case was raised before him. THE learned counsel for the parties have raised argu ments in this regard before me. Considering the scope of Section 397, Cr. P. C. this aspect is being considered.