ATAHAUL HAQUE Vs. MOHAMMAD ALLAUDDIN

JUDGEMENT

(1.) This application under ss. 397 and 401 of the Code of Criminal Procedure, 1973 (in short 'the Code') is directed against the order dated 26-7-1997 passed in Cr. Revision No. 1/97/19/97 by Shri Binod Mohan Prasad, 2nd Additional Sessions Judge, Jehanabad through which the order passed by Shri S. Shah, Executive Magistrate acting as Sub-Divisional Magistrate, Jehanabad in Case No. 193 (M)/97, dated 25-2-1997 was set aside.

(2.) On the strength of a report dated 13-2-1997 submitted by the Anchal Adhikari, Jehanabad a proceeding under S. 144 of the Code was started on 15-2-1997 by the Sub-Divisional Officer, Jehanabad against both the parties with respect to 37 decimals of land bearing Plot No. 346, Khata No. 94 of Village Umta Police Station and District Jehanabad. In the said report the Anchal Adhikari had stated that 8 bags of cement of petitioner No. 2, Uday Shanker, was lying in the room at the disputed land. When the Anchal Adhikari returned from the site the lock of the aforesaid room was broken and the cement was removed by opposite party No. 1, Md. Allauddin. The Anchal Adhikari brought this fact to the notice of the Sub-Divisional Magistrate vide his Memo No. 146 dated 15-2-1997. Both the parties appeared before the learned Sub-Divisional Magistrate who converted this proceeding into one under S. 145 of the Code and attached the disputed land under S. 146(1) of the Code. Opposite Party filed Criminal Revision No. 1/97/19/97 before the learned Additional Sessions Judge, Jehanabad before whom it was submitted that Title Suit No. 118 of 1996 for the part of the disputed land between opposite party and third persons was pending. The present petitioners appeared before the Court and in their reply they stated that the petitioners were not the parties to the aforesaid title suit and mere pendency of a title suit is no bar to the proceeding under Ss. 145 and 146(1) of the Code. However, the learned Additional Sessions Judge allowed the said criminal revision by the order dated 26-7-1997 by which he quashed the order dated 25-2-1997 passed by the learned Executive Magistrate initiating the proceeding under S. 145 of the Code as also the order passed under S. 146(1) of the Code. It is against this order that the present revision application has been filed.

(3.) The petitioners have contended that the learned Court below has committed error of jurisdiction in not considering the fact that the pendency of civil suit is no bar to a proceeding under S. 145 of the Code which is only preventive in nature. The learned Court below has also committed error of law inasmuch as the present petitioners were not parties to the said title suit which related only to a part of the disputed land which was the subject-matter of the proceeding under S. 145 of the Code. The learned Court below failed to consider that under the revisional jurisdiction re-appreciation of evidence is not permissible and the revisional Court will not replace his own views over that of the original Court. The learned Court below also failed to consider that since the provisions of S. 146(1) of the Code are of emergent nature any proceeding under this section cannot be stayed. On these grounds, amongst others, it has been contended that the impugned order be quashed.