UD. NAIK Vs. GOURANGA NAIK

JUDGEMENT

(1.) THIS Criminal Revision is directed against the order dated 16.9.1995 in Criminal Revision No. 41 of 1995 of the Court of Sessions Judge, Sambalpur.

(2.) PETITIONER is the second party and the opposite party (substituted by L.R. during pendency of this Revision) is the first party in Criminal Misc. Case No. 4H of 1994 under Section 145, Code of Criminal Procedure of the Court of Executive Magistrate, Sambalpur. The proceeding filed by the opposite party wherein an order of attachment was passed under Section 146 (1), Code of Criminal Procedure After his appearance, Petitioner filed a petition to lift the attachment order, inter alia, on the ground of pendency of civil dispute between the parties. On 19.4.1995 without hearing opposite party, learned Executive Magistrate vacated the order of attachment passed under Section 146(1), Code of Criminal Procedure Opposite party challenged that order in the above noted Criminal Revision No. 41 of 1995. Learned Sessions Judge, at the stage of admission, heard and disposed of the revision by setting aside the order of the Magistrate on the ground that learned Executive Magistrate should not have passed that order without hearing both the parties. He directed the Executive Magistrate to hear the parties and to dispose of the matter relating to lifting of the order of attachment in accordance with law. Petitioner challenges that order in this Revision. Mr. A.K. Bose, learned Counsel for the Petitioner argued that order dated 19.4.1995 of the Executive Magistrate being an interlocutory order, learned Sessions Judge should not have invoked the revisional jurisdiction in view of the provisions under Section 397(2), Code of Criminal Procedure In support of that contention, he has relied upon the case of Indrapuri Primary Cooperative Housing Society Limited v. Bhabani Gogoi : : 1991 Cri. LJ 1765. His second contention is that when a civil dispute is pending between the parties and learned Magistrate proceeded in the direction to avoid a parallel proceeding and passed order in vacating the attachment order under Section 146 (1), Code of Criminal Procedure, learned Sessions Judge should not have interfered with that order.

(3.) SO far as the contention of Mr. Rajan that point of jurisdiction cannot be raised for the first time in this forum when it was not agitated in the Court of Session is concerned, that point has No. merit, inasmuch as, if the order of the Magistrate shall be regarded as an interlocutory order coming within the ambit of the prohibition prescribed under Section 397(2), Code of Criminal Procedure, then learned Sessions Judge, at the stage of admission should have taken up that point for himself, even if not raised from the side of the opposite party. Therefore, Petitioner is eligible to raise that point.