RAJEEV KUMAR AGRAWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS miscellaneous petition was placed before me for hearing the interlocutory application filed by the O.P, No. 2 seeking the vacation of order of stay granted by me on 7.12.06 while issuing notices to the O.P. No. 2. The matter was heard by consent of the parties finally and the whole petition itself is being disposed of by the present order.

(2.) THE impugned order is dated 9.10.06 by which the Sub -Divisional Magistrate, Majhaul recalled the order of attachment u/s. 146(2) of the Code of Criminal Procedure passed by him in case no. 137(M)/2006. A proceeding u/s. 145 of the Code of Criminal Procedure was initiated by the Sub - Divisional Magistrate, Majhaul on an application filed by the petitioner on 2.5.2006. Police report was initially called for on that petition by order dated 3.5.2006 which was submitted on the same day, i.e., on 3.5.2006 and the proceeding u/s. 145 of the Code of Criminal Procedure was initiated by order dated 10.5.2006 (annexure -2 to the petition). So as to challenging the vires of the order initiating a proceeding u/s. 145 of the Code of Criminal Procedure a criminal revision petition was filed before the learned District & Sessions Judge, Begusarai on 22.5.2006 as appears from annexure -D to the I.A. petition which was undisputedly admitted on 26.5.2006 as appears from the afore noted annexure -D. The order of the Sub -Divisional Magistrate dated 15.6.2006 (annexure -I to the I.A. petition) indicates that the order calling for the lower Court record by the learned Sessions Judge passed after admitting the criminal revision petition was received by the office of the Sub -Divisional Magistrate, Majhaul on that date and accordingly on 20.6.2006 an order was passed by the Sub -Divisional Magistrate to transmit the record of the proceedings to the learned Sessions Judge in reference to criminal revision petition no. 234 of 2006. It is not disputed that the records were despatched by the Sub -Divisional Magistrate 'sOffice to that of the learned Sessions Judge, Begusarai and a shadow record was created.

(3.) THE impugned order dated 9.10.2006 vacating/recalling the order of attachment u/s. 146(2) of the Code of Criminal Procedure has been attacked as passed without jurisdiction because the criminal Courts do not have a power to review or revise their own order. The order was also attacked on the ground that after attaching the subject matter of dispute u/s. 146(2) of the Code of Criminal Procedure by order dated 31.8.2006, O.P. No. 2 did not take up any legal proceedings for getting the order set aside by any superior criminal Court and merely presented a petition on the same day seeking the vacation of the attachment order and without hearing the petitioner the impugned order was passed on 9.10.2006 itself on which date the petition was filed by OP. no.2. The lower Court did not have any reason and concrete factual basis for holding that emergency did not exist on the spot and there was no longer any apprehension of the breach of peace which was necessary for recalling the order and it was merely a petition the veracity of which could not be even got enquired into through any competent agency. It was further contended that mere settlement of the dispute by the civil Court does not make the proceeding u/s. 145 of the Code of Criminal Procedure meaningless if it is found that the parties were at draggers drawn and there was apprehension of breach of the peace in respect of immovable property in regard to which there was a bona fide dispute of possession giving rise to the odd apprehension of breach of peace. Reliance was placed for making the above submission on Prakash Chand Sachdeo V/s. The State, 1994 1 SCC 471.