BECHAN MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) Is the order of attachment of immovable property under Section 146(1) of the Code of Criminal Procedure, 1973, interlocutory in nature within the meaning of Section 397(2) of the said Code? This is the somewhat salient issue necessitating this reference to the Division Bench. Equally at issue is the correctness of the cryptic observation of the learned single Judge in Ishri Gope v. Krishna Kumari Devi, 1978 BLJR 220 holding to the contrary.

(2.) It is manifest that the issue aforesaid is pristinely legal and stems from facts which lie in a narrow compass and, therefore, deserve notice with relative brevity. Opposite Party No. 2 Baleshwar Mahto had initiated the proceeding by filing a petition before the Sub-Divisional Magistrate, Gopalganj, under Section 144 of the Code of Criminal Procedure (hereinafter to be referred to as 'the Code'), with respect to the disputed pieces of land situate in villages Aithi, Ratanpur and Koha Poha within the jurisdiction of Bijaipur. The learned Sub-Divisional Magistrate called for a report from the local police and a proceeding under Section 144, was initiated which was subsequently converted into one under Section 145 and the case was transferred to the Court of Shri Ram Lakhan Prasad, Executive Magistrate, Gopalganj. Before him, opposite party No. 2 then filed a petition for attachment of the land in dispute under Section 146(1) of the Code which was directed to be forwarded to another Executive Magistrate, Shri Kanhaiya Shrivastava, for inquiry and report. On the receipt of the said inquiry report, opposite party No. 2 filed another petition for attachment of the disputed land under Section 146(1) of the Code to which the petitioners filed a rejoinder and their objections to the inquiry report of the Executive Magistrate. However, rejecting the plea of the petitioners, the learned Magistrate, by his impugned order dated the 28th of September, 1985, attached the disputed land under Section 146(1) of the Code.

(3.) Aggrieved thereby, the petitioners then preferred a revision before the learned Sessions Judge of Gopalganj. This revision was, however, strenuously opposed at the very threshold as being not maintainable on the ground that the impugned order of the Magistrate was interlocutory in nature and a revision against the same was hit and barred by the provisions of Section 397(2) of the Code. In a considered judgment running into 12 typed pages, the learned Sessions Judge upheld the objection and finding that the revision was not maintainable, dismissed the same,