PARAS NATH SHUKLA Vs. STATE OF U P

JUDGEMENT

(1.) THESE are applications in revision directed against an order of the Executive Magistrate Jaunpur, dated 26th February, 1985, arising out of proceedings under Section 145 Code; of Criminal Procedure (hereinafter referred to as the Code) between the parties. THESE proceedings were initiated upon an application filed by Murali dated March 17, 1981 in the Court of the Sub-Divisional Magistrate, Machhalishahar, district Jaunpur. The dispute is with respect to a petrol and diesel oil pump run under the name and style of 'Annapurna Filling Station' situate in village: Mirpur on the Allahabad- Jaunpur road. This case has a chequered history.

(2.) PRELIMINARY order was passed on March 18, 1981. Attachment was also directed the same day under the emergency clause of Section 146 (1) of the Code. The attachment was effected on March 19, 1981. Paras Nath Shukla and Murali both put in their respective written statement. An application was made by the Indian Oil Corporation Limited (hereinafter referred to as the 'Corporation') dated May 11, 1981, claiming a person interested to the effect that there is no apprehension of breach of peace involved, that Paras Nath Shukla is their duly appointed retail out let dealer and holds licence from the Excise Department and, as such, he is competent to continue to run the petrol pump. On June 2, 1981, the Magistrate quashed the proceeding under Section 145 (5) of the Code He directed release of the petrol tank and machine in favour of the Corporation and the land, including the sales room to Paras Nath Shukla- Murali filed Criminal revision no. 740 of 1981 against this order, which was decided by a learned single Judge (N. N. Sharma, J.) on December 4, 1981. The order dated June 2, 1981 was set aside. It was held that the Corporation was not a person interested, they ware not a party to the proceeding and no release in their favour could be made in any case. The case was remanded to the Magistrate with these observations and a direction to proceed according to law in view of Section 145 (4) and (5). Shukla applied under section 482 of the Code to quash the proceeding. The application was rejected on September 9, 1982, by a learned single Judge with the; observation that he might seek relief under Section 145 (5) before the Magistrate. The Corporation put in another application dated September 13, 1982, reiterating their earlier stand. Shukla filed a similar application on the same day under Section 145 (5). The Sub-Divisional Magistrate, Jaunpur, rejected these applications on May 16, 1983, with the findings that the Corporation was not a party interested nor in possession and that apprehension of breach of peace continued as between other two. The corporation came up in Criminal Revision No. 1033 of 1983 against this order, which was dismissed by P. N. Bakshi, J. on September 15, 1983, holding that the applicant Corporation was not a person interested. Special Leave petition filed by the Corporation against this order was dismissed summarily by the Supreme Court on October, 8, 1984, with the remark that if so advised the Corporation may file a suit. The chapter, therefore, relating to the interest claimed by the Corporation in the proceeding, thus, closed finally on October 8, 1984.

(3.) PRELIMINARY objection was raised by Sri J. S. Sengar, counsel for Murali, to the extent that the order impugned is interlocutory and hence revision does not lie in view of section 397 (2) of the Code. I do not; find force in this contention. The order impugned may not be considered as final in the sense that it does not adjudicate or decide the rights or obligation between the parties. All the same this may not be characterised as an order passed in routine or interim or of no material consequence for that matter. The reason is that by this order the Magistrate has declined finally to decide for himself as to which of the parties was in possession on the relevant date. He has expressed inability in this behalf. The decision has been left over to the civil court instead. In the civil court the parties shall have necessarily to make out not merely actual possession obtaining on March 18, 1981, but also the right; to possess the subject matter in dispute and it is this which makes a substantial difference. Even section 146 (1) contemplates attachment of the subject of dispute until a competent court has determined the rights of the parties thereto " with regard to the person entitled to the possession thereof. If it were to be a decision by the Magistrate himself, the parties would not be required to establish their respective right or title to the subject matter of dispute. Finding on joint of possession may only have served the purpose. But the position changes materially if the matter has to be dealt with by civil court. In Indra Deo Pandey v. Smt. Bhagwati Devi, 1981 AWC 314 the Division bench dealt with a case where there was attachment under the emergency clause of section 146 (1). In that case there does not arise the question of an order made under any ofi the two remaining clauses, of Section 146 (1). It was held that the order in question therein was interlocutory against which revision did not lie. This cannot, in my opinion, be extended to a case where the order relegating the parties to the civil court is founded on the other two clauses of Section 146 (1)- The distinguishing feature is that where the attachment continues under the emergency clause of section 146 (1), the Magistrate retains the jurisdiction to proceed under Section 145 (4) but this would not be so where the order proceeds under any of the two other clauses, vide Shital Prasad Patel v. Raja Ram, 1978 AWC 665 (DB) following Shri Chandu Naik v. Sri Sitaram B. Naik (1978) I SCC 210 decided by the Supreme Court. The order as in the present falls, in my opinion, within the category of what has been described as an intermediate order in the well known case of Madhu Limaye v. State of Maharashtra, 1978 AWC 96 (SC) see also K. L. Sachdeva v. Rakesh Kumar Jain, 1983 AWC 632. Conscious as he was of the revision filed by Murali as well learned counsel did not indeed pursue this argument further.