RAM DAS Vs. STATE OF U P

JUDGEMENT

(1.) KUNDAN Singh, J. Haerd learned counsel for the parties and perused the record.

(2.) IT is admitted to the counsel for both the parties that proceedings under Section 146, 145, P. C. are still pending. The Magistrate passed an order under Section 146 (I), Cr. P. C. on 17-8-91 attaching the property in dispute and the contention of the learned counsel for the applicant is that the revision before the lower revisional court was not maintainable in view of the Code, of course, an order of attachment passed under Section 146 (1), Cr. P. C. is not a final order but an interlocutory order against which no revision lay in view of sub-section (2) of Section 397 of the Code of Criminal Procedure and I fully share with the view of learned counsel for the applicant that the order dated 7-7-1992 passed by the learned Additional Sessions Judge was without jurisdiction.

(3.) THE next contention of the learned counsel for the opposite party was that in the case 16-8-91 was the date fixed before the Magistrate but on that date there was strike of the lawyers in the District Courts, hence the case was adjourned to 18-9-91 and the learned Magistrate rather taking the case on the adjourned date took it up on 17-8-91 and passed the order of attachment on 17-8-91 itself without hearing the counsel for the opposite party No. 2 of course, a court should not take up a case earlier than the date fixed and that too without notice to the parties it depends upon the situation also. Needless to say an order of attachment is passed in the case of emer gency. If in emergent situation, keeping in view the law and order position, the Magistrate has passed the order of attachment without hearing any party, it is always open to that party to approach the Magistrate and bring to his notice that there was no emergency for passing the order without hearing both the parties and if he is convinced he may recall that order, being passed without hearing the aggrieved party and pass a fresh order after hearing both the parties. So if the opposite party feels that there did not exist any emergency for invoking the powers under Section 146 (1), Cr. P. C. , he may move the Magistrate again for recalling his order but this court cannot lay down as a rule of thumb that even in grave situation and emergency the Magistrate can not exercise his discretion and take up a case earlier than the date fixed in it.