SOHANLAL BURMAN Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner has by this petition challenged an order under section 145 Cr. P. C. as also an order of attachment under section 146 (1) of the same Code. A preliminary objection has been raised by the respondent that the petition abated in view of Section 58 of the Constitution 42nd (Amendment) Act, 1976. Section 58 (1) of the Constitution 42nd (Amendment) Act provides that pending petitions and interim orders and thereon should be dealt with in accordance with the Provisions of Article 296 as substituted by section 38 of the Amending Act. Sub-section (2) provides that petitions which would not have been admitted by the High Court under the Provisions of Article 226 as substituted by section 38 aforesaid, shall abate and any interim order made thereon shall stand vacated. Article 226 (3) of the Constitution as now stands, bars a petition for redress of any injury referred to in sub-clauses (b) and (c) of clause (1) of Article 226, if any other remedy for such redress is provided by or under any other law. Respondents counsel's contention is that the orders passed by the Executive Magistrate are revisable under sec- section 397 of the Code of Criminal Procedure. Relevant part of section 397 (1) and (2) or P. C. runs as under : "397, Calling for records to exercise powers of revision. THE High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence or order be susponded and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation. All Magistrates, whether Executive or judicial and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398. (2) THE powers of revision confer-red by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding." Both the orders passed under section 145(1) and 146(1) being that of inferior criminal court situate within the jurisdiction of the Sessions Judge and this Court are, on the plain meaning of Section 307 (1) revisable. It has, however, been urged that the order passed under section 145(1) and the attachment order under section 146(1) are interlocutory orders and, as such, no revision lies in view of sub-clause (2) of section 307. In order to consider this contention it is necessary to refer to Section 146 (1) of the Code which may be conveniently extracted at this stage. "146. Power to attach subject of dispute and to appoint receiver (1) If the Magistrate at any time after making the order under sub-section (1) of Section 146 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as it referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach 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. Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the sixth subject of dispute." A perusal of this provision leads plainly to the result that on any of the three contingencies existing, viz. (1) in cases of emergency; (2) when the Magistrate reaches the decision that none of the parties is in possession; and (3) when he is unable to satisfy himself as to which of them was in possession ; he may attach the subject of dispute until a competent court has determined the rights of the parties with regard to the person entitled to possession thereof. Thus, as soon as any of the three situations is reached and as attachment order is made, the proceedings under section 145 Cr. P. C., save as regards the withdrawal of attachment provided for by the first proviso to section 146 (1), come to an end before the Executive Magistrate. We are fortified in the view that we are taking by decisions of the Orissa High Court, the Delhi High Court, the Patna High Court and a Single Judge's decision of this court reported respectively in Dandupari Pala and others v. Madan Mohan Pala & others (1976Cr. L. J. 2014.), Hakirn Singh and others v. Girwar Singh and others (1976 Cr. L. J. 1915.), Mohd. Musleh uddin and other v. Mohd. Saleh Uddin (1976 Cr. L. J. 1150.) and Chandi Prasad and others v. Om Prakash Kanodia and others (1976 Cr. L. J. 209.). Thus an order attaching the property under section 146(1) terminates the proceedings under section 145 before the Executive Magistrate save for the limited purpose of withdrawing the attachment in cases where the apprehension of breach of peace cases to exist. We are unable to see how such an order can be termed as an interlocutory order for, nothing survives for substantial determination before the Executive Magistrate after an attachment order under section 146 (1) is passed. THEreafter the rights of the parties to possession of the attached property has to be determined by the civil court. We think that on this conclusion it is not necessary to go into the niceties of the arguments advanced by the counsel as to what would constitute an interlocutory order, whatever be the nature of an interlocutory order in a particular case, an order which concludes the proceedings before a criminal court cannot in any sense of the matter be termed as an interlocutory order. Counsel for the petitioner drew our attention to three decisions of this Court in support of the contention that the order of attachment passed under section 146(1) and that under section 145(1) is an interlocutory order. THE cases on which reliance has been placed are Syed Ali v. State (1976 Alld. Cr. Cases 302.), Bindbasni and others v. State of U. P. (1976 A. W. C. 301.) and Rum Adhin v. Shyama Devi 1977 Alld. Cr. Cases 10. So far as the case of Syed Ali is concerned, a learned Single Judge of this court held that an order of attachment under section 146 Cr. P. C. is in the nature of an interim order in the sense that the property remains under attachment till the dispute with regard to the rights of the parties is decided by a competent court. THE question whether a revision against such an order was barred in view of sections 397 (2) of the Code of Criminal Procedure on account of the fact that such an order is an interlocutory order, was not considered and did not arise for decision. As such this case is of no assistance to the contention advanced. THE case of Bindbasni and others v. State of U. P. (1976 A.W.C. 291.), is-hardly of any assistance. That was a case under section 107/111 Cr. P. C. and it was held that the order passed under those sections was an interlocutory one. THE test laid down for determining as to what would be an interlocutory order was as to whether the order in question finally disposed of the rights of the parties or left that to be determined in the ordinary way. THE test laid down by the Division Bench as to what constitutes an interlocutory order was for purposes of that particular case and was not intended to be exhaustive of all situations and of universal application. It cannot possibly apply to a case where the court, after it has passed a particular order loses seisin of the case and the controversy has to be decided by another court of competent jurisdiction. To give an illustration, formerly under the Zamindari Abolition and Land Reforms Act, questions relating to title had to be referred to civil courts for determination and the Revenue Court on receipt of those findings, decided the suit. It can hardly the said that such orders, which referred the matter for determination of rights by another competent court were interlocutory in nature for, so far as that court was concerned, the determination of the dispute no longer remained in its hands. Thus, such orders cannot be labelled as mere interlocutory orders as to bar a revision under section 397 (1) of the Code. THE decision in the case of Ram Adhin v. Shyama Devi (1977 Alld. Cr. Cases 10.), with respect, docs not appear to be correct. THE learned Single Judge himself felt difficulty in reaching the conclusion that an order under section 146(1) did not terminate the proceedings under Section 145 Cr. P. C. but took a contrary view on account of the Provisions of Section 145 (4) of the Code. Section 145 (4) of the Code enjoins on the Magistrate to decide the question as to which of the parties was in possession on the date of the order, irrespective of the rights of the parties to possess the subject-matter of dispute. We, however see no antethesis in the power conferred on the Magistrate to decide the dispute under Section 145(4) of the Act and a situation which arises on account of an order of attachment being made under Section 146 (1) of the Code. We have already extracted section 146 (1) of the Code. So far as the second and third contingencies are concerned, which have been referred to earlier, where the magistrate decides that none of the parties is in possession, or he is unable to satisfy himself as to which of the parties are in possession, he has to take the evidence of the parties before reaching such a conclusion and such evidence has obviously got to be recorded in accordance with the provisions of Section 145(4) of the Act. So far as the first contingency is concerned, i.e. a case of emergency, the procedure laid down under Section 145(4) may or may not have to be reported to by the Magistrate depending on the exigencies of the situation. Thus, S. 145 (4) does not become nugatory on the interpretation that we place on Section 146(1) of the Code. So far as the order under Section 145(1) is concerned, that is final, as regards the satisfaction of the Magistrate at the stage that a dispute exists which is likely to cause a breach of peace between the parties. Thus, that order too cannot be said to be interlocutory in nature. In view of these conclusions we are of the view that the petitioner has a clear alternative remedy of filing a revision under Section 397(1) of the Code of Criminal Procedure. This being so, the petition abates in view of Section 58 of the Constitution 42nd (Amendment) Act, 1976 and is dismissed as such. THE stay order is discharged. It is open to the petitioner to challenge these orders by way of revision as provided for in the Code. THEre will be no order as to costs. We, however, feel that the exigencies of the case require that the revision should be disposed of as expeditiously as possible as and when filed by petitioner.