PRAKASH RAI Vs. RAMAN RAI

JUDGEMENT

(1.) THIS revision is directed against a composite order under section 145(1) and (4) Cr. P. C. Learned counsel for the respondent raised a preliminary objection in regard to the maintainability of the revision on the ground that the impugned order was an interlocutory order. The point is no longer res integra. There is a Division Bench judgment of this court in which it was held that an order under section 145 (1) is in the nature of a final order and as such revisable but an order under section 145 (4) is in the nature an interlocutory order and consequently it is not open to revision. Even the learned counsel for the respondent ultimately conceded that this was the true legal position

(2.) COMING to the order under section 145 (1) the petitioners grievance is that the Magistrate was not competent to initiate proceedings under section 145 Cr. P. C inasmuch as the property formed the subject matter of dispute in a previously instituted suit between the parties which was pending in the High court at the time of initation of proceedings by the Magistrate. The law is well settled that the pendency of a civil suit does not bar the Magisterial from taking proceedings under section 145. Cr. P. C. The grievance is clearly misconceived.

(3.) THEN comes the order under section 145 (4). A revision against this order is not competent. Learned counsel for the petitioner however states that the order was passed exparte. That would not however entitle the petitioner to challenge the order in revision. He can ask the Magistrate to reconsider the order. For in the case of Gula Shah Vs. Mohd. Amin Shah 1975 K. L. J. 131, it has been held by this court that there is nothing to prevent a Magistrate from making an ad interim order of attachment exparte but he should simultaneously issue notice to the affected party to show cause why the order should not be made absolute It is true that no such notice has been issued in the present case but that would affect the nature of the order which must be construed to be an ad interim attachment subject to objections by the other side.