PREMLATA AND OTHERS Vs. RAM LUBHOYA AND OTHERS

JUDGEMENT

(1.) THIS revision app­lication arises out of the proceedings under Section 145 Cr. P. C. An appli­cation under Section 145 Cr. P. C. was filed by Ram Lubhaya and others on 12th June, 1978. The Station Officer Kotwali was directed to make a spot inspection and to submit his report. The Station Officer reported vide Annexure 'C' dated 12. 6. 1978 that there was an apprehen­sion of breach of peace and prayed for attachment of the disputed property. Another detail report was called for by the Magistrate on 13. 6. 1978 which was submitted the same day vide Annexure 'D' in which while recommending section under Section 145 Cr. p. C, it was also reported that civil litigation had been decided with respect to the same proper­ty by the Munsif as well as by the Civil and Sessions Judge in favour of Smt. Prem Lata. It appears that the Magis­trate asked for the opinion of the District Government Council (Criminal). He was of the opinion that it was not desirable to initiate proceedings under Sec. 145 Cr. P. C. in view of the Civil litigation between the parties, and if there was apprehension of the breach of peace, then the party concerned should be proceeded with under Section 107/117 Cr. P. C. Thereafter on 15th June, 1978 Ram Lobhaya and three others again filed an application under Section 145/147 Cr. P. C. on which the Station Officer Kotwali was again directed to submit his report. The Station Officer Kotwali reported on 15. 6. 1978 that there was an apprehension of the breach of peace and that the property in dispute may be attached under Section 146 Cr. P. C. On 16th June, 1978 the City Magis­trate, Mathura being of the opinion that there was an apprehension of the breach of peace and considering the case one of emergency, passed impugned order attaching the property in dispute. Hence this revision.

(2.) I have heard counsel for the parties at considerable length and have also perused the documents on the record. A preliminary objection has been taken that the impugned order being an inter­locutory order the revision in question is not maintainable. Learned counsel for the applicants has argued that the impug­ned order is not an interlocutory order. His submission is that if this Court comes to the conclusion that since the civil dispute with respect to the land in question has been decided in favour of the applicants, the court below should not have proceeded under Section 145 Cr. P. C. but should have taken action under Section 107/117 Cr. P. C. against the opposite parties, the entire proceed­ings were liable to be quashed. In the alternative the learned counsel has also urged that the order of attachment is a final order passed under Section 146 (I) Cr. P. C. (new) and will enure till the right to the properties, with regard to the person entitled to possession to the dispute land, are determined by a com­petent court.

(3.) WITH regard to the second contention, two cases have been brought to my notice by the counsel for the parties. In the decision of Madhu Limaye v. State of Maharasthra (1978 ACC 183=1978 Cr. L. J. 165.) the scope of inter­locutory order within the meaning of Section 297 (2) Cr. P. C. (new) was under consideration. Their Lordships of the Supreme Court were of the view that "An order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397 (2) Cr. P. C. Applying that principle it can­not be said that a decision on the ques­tion whether the emergency attachment of the property in dispute is justifiable or not is a matter which will conclude the proceedings u/s Section 145 Cr. P. C. From a perusal of Section 146 (1) Gr. P, C. it is clear that an order of attach­ment can be passed by the Magistrate on the existence of either of the following three conditions:-