ANAND TYAGI Vs. MAHENDRA SINGH

JUDGEMENT

(1.) Heard Shri Kamal Krishna, learned Counsel for the revisionist and Shri S.K. Mishra, learned Counsel for the opposite party, at length. The present revision is being finally disposed of at the admission stage.

(2.) After passing the preliminary order under Sec. 145 (1) of the Cr. P.C. the learned Magistrate passed order dated 25-6-91 whereby he directed attachment of the disputed property. Revisionist moved an application dated 2-8-91 for lifting the attachment and the said application was allowed vide order dated 3-8-91. The order of the learned Magistrate dated 3-8-91 was challenged by the present opposite party Mahendra Singh in Criminal Revision No. 372/1991. The learned 5th Addl. Sessions Judge vide his judgment and order, dated 7-2-92 allowed the revision by setting aside the order of the learned Magistrate. Feeling aggrieved by the judgment and order of the appellate Court Shri Anand Tyagi, the present revisionist has challenged the revision on the grounds that the order passed by the learned Magistrate is an interlocutory order against which no revision could have been entertained "Tlfc. and the learned Addl. Sessions Judge has committed an error in allowing the revision.

(3.) Having heard learned counsel for the parties I feel that the entire proceedings before the learned Magistrate were vitiated. Enquiry under Sec. 145 (1) Cr. P.C. can be made with regard to the possession and not ownership. Copy of the preliminary order has been produced before the court which shows that the learned Magistrate directed the parties to adduce evidence in respect of their claim of ownership of the disputed property. Such enquiry was not permissible under the provisions of Sec. 145 (1) Cr. P.C. Along with his counter-affidavit Mahendra Singh has filed a copy of the attachment order dated 25-6-91 which is Annexure-1 to the affidavit. In this order also the Magistrate has stated that the dispute is with regard to the ownership and there is no mention to the fact that the dispute related to the possession of the disputed property. In these circumstances the preliminary order is illegal and consequent attachment under Sec. 146 (1) Crimial P.C. is also illegal. The entire proceedings before the learned Magistrate are vitiated and have to be quashed.