AB AHAD LONE Vs. STATE

JUDGEMENT

(1.) IN this revision petition which is directed against the order made under proviso to Section 145 (4) Cr. P. C. the main ground on which the order is assailed is that there is no preliminary order as envisaged by Section 145 (1) Cr. P. C. which would lay foundation for making an order of attachment under proviso to Section 145 (4) Cr. P. C.

(2.) I have gone through the impugned order. I find that what the magistrate has done is that after stating the facts of the case, he has proceeded to issue notice to the parties to show cause as to why the subject matter of dispute be not attached. The entire, order, in my opinion, is without jurisdiction. Under Section 145 (1) Cr. P. C. the magistrate is required to state the facts of the case, and then to record his satisfaction that there exists such dispute over the possession of the and further that such dispute is likely to occasion, breach of the peace. Thereafter he is required to ask the parties to put in their respective statements as respects the fact of actual possession of the subject matter of dispute. No where in the order these things are mentioned and, therefore, the requirements of Section 145 (1) are not complied with. In view of this the order of show cause notice falls to the ground. When the very foundation goes. I do agree with the learned counsel for the respondent that an order made under proviso to Section 145 (4) Cr. P. C. is not revisable as it being an interlocutory order, is not amenable to the revisional jurisdiction of this court. But, never the less, the court can interfere in a case where it finds that the foundation on which the order is based is without jurisdiction. That exactly is the case in the present revision petition.

(3.) I , would therefore, allow the revision petition, and quash the impugned order as also the subsequent orders and direct the magistrate to proceed a fresh in the case, draft the preliminary order in accordance with Section 145 (1) Cr. P.C. and thereafter dispose of the case according to law.