RADHA VENKATA RAO Vs. PREMA MALHOTRA

JUDGEMENT

(1.) This criminal revision case arises out of proceedings under S. 145, Cr.P.C. The petitioner is a tenant and running a school under the name "St. Sais School and Baby Care Centre" (hereinafter referred to as first party). The out-house, first floor and a part of the ground floor are in the occupation of the school and the remaining portion of the ground floor is in the occupation of the landlord hereinafter referred to as the second party). The second party stated that on 7-9-1984 the first party voluntarily vacated the premises and handed over the vacant possession. But this is denied by the first party stating that on the intervening night of 5/6-10-1984 the second party forcibly took possession of the premises. Both the parties filed civil suits. The first party filed criminal complaint for the offences punishable under Sections 427 and 430 IPC against the second party. The first party also filed a suit and obtained an injunction against the second party from surrendering the vacant possession of the first floor and the out-house to the prospective purchaser during the pendency of the suit being O.S. No. 1413/84. Thereafter, the first party initiated proceedings under S. 145 Cr.P.C. and the Special Executive Magistrate passed a preliminary order under S. 145(1), Cr.P.C. and subsequently by an order dt. 13-12-1984 directed the attachment of the subject-matter of dispute and appointed the Tahsildar as a Receiver to keep the property in his custody under S. 146(1) Cr.P.C. while passing the order, it was observed that both the parties are trying to take advantage of the orders passed by the Civil Courts in their favour and in view of the tension and imminent danger to public peace and tranquillity, the order under S. 146(1) Cr.P.C. is necessitated. As against this order, the second party preferred a criminal revision petition before the II Addl. Metropolitan Sessions Judge, Hyderabad. The learned Metropolitan Sessions Judge held that the revision petition is maintainable as the impugned order under S. 146(1) Cr.P.C. affects the rights of the parties and, therefore, cannot be treated as an interlocutory order. It is further held that in view of the fact that both the parties approached the civil court and obtained injunctions, the Special Executive Magistrate should not have attached the property and appointed the Receiver and further there is no conflict between the interlocutory orders obtained by the parties since the first party obtained an injunction for maintaining status quo and the injunction obtained by the first party is confined to interdict the second party from inducting the purchaser into the disputed premises pending disposal of the suit.

(2.) The learned counsel for the petitioner raised twofold contention viz. that the criminal revision petition as against the order of attachment is not maintainable and as such as the revision petition should have been dismissed in limine and that in any event the reversal of the order of attachment passed by the Special Executive Magistrate is not justified on merits.

(3.) To appreciate the rival contentions, it is necessary to refer to S. 397 Cr.P.C. which confers power on the High Court and the Sessions Judge to revise the order of any inferior criminal Court. Sub-section (2) of S. 397 which sets out an embargo on the power of exercise of revision jurisdiction is as follows :- "397(2) : The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding."