Ishwar Chand vs 1st Additional District and Sessions Judge and Others

S.P. Srivastava, J.—Feeling aggrieved by an order passed by the Ist Additional District and Sessions Judge, Gorakhpur allowing the criminal revision filed by the Respondent No. 3, Gulab Chand and quashing the proceedings u/s 145 of the Code of Criminal Procedure including the order dated 5.6.1996 whereunder the property in dispute was attached and put in the supurdigi of an independent person subject to the orders passed by the civil court terminating the proceedings, the Petitioner has now approached this Court seeking redress praying for the quashing of the revisional order.

I have heard the learned Counsel for the Petitioner and the learned Counsel representing the contesting Respondents and have carefully perused the record.

The facts in brief, shorn of details and necessary for the disposal of this case lie in a narrow compass. The Petitioner had filed Original Suit No. 448 of 1977 against the Respondents No. 3 and 4 seeking a declaration that he was the owner in possession of the portion shown by red colour in the map attached with the plaint on the basis of the private partition affected in the year 1976 with which the Defendants had no concern. The aforesaid suit was decreed by the trial court on 12.9.1977 providing that the compromise shall form part of the decree. In the compromise, it had been admitted by the contesting Respondents that the portion of the house in dispute which was shown by red colour exclusively belonged to the Plaintiff who was in possession thereof. The Plaintiff filed another suit being Original Suit No. 1355 of 1995 in the court of Civil Judge, Junior Division, Gorakhpur against the contesting Respondents seeking a decree of permanent injunction restraining the Defendants from interfering in the possession of the Petitioner over the property in dispute which was the same in respect whereof the claim of the Plaintiff had been decreed in the earlier suit. In Suit No. 1355 of 1995, it had been asserted that on 10.9.1995, the Defendants had threatened to interfere in the possession of the Plaintiff over the property in dispute. In the latter suit, the Plaintiff had filed an application seeking a temporary injunction on which application, the trial court vide its order dated 11.9.1995 had issued an ad interim injunction requiring the parties to maintain status-quo on the spot till 12.10.1995. This order of interim injunction was extended from time to time.

During the pendency of the aforesaid suit and currency of the interim injunction granted by the trial court, on a police report, the Magistrate initiated the proceedings u/s 145 of the Code of Criminal Procedure and a preliminary order was passed by the Magistrate on 1.1.1996 attaching the property in dispute which formed part of the portion which stood allotted to the Plaintiff which was the subject-matter of the suit referred to hereinabove. In the police report, it had been pointed out that on 3rd October, 1995, Gulab Chand has taken possession of the portion in dispute which formed part of the residential house of Ishwar Chand in his absence.

The Magistrate came to the conclusion that there was apprehension of breach of peace inspite of the interim order having been granted by the civil court of competent Jurisdiction and in order to maintain peace on the spot, it was necessary to keep the shop in dispute attached u/s 146 of the Code of Criminal Procedure. The Magistrate accordingly attached the property subject to the orders passed by the civil court and directed for its putting to be in the supurdigi of an independent person. The attachment was affected on 6.6.1995.

Gulab Chand thereafter filed the revision. The revisional court came to the conclusion that taking into consideration the pendency of the civil suit and the interim order of injunction granted therein, there was no justification for passing an order u/s 146(1) of the Code of Criminal Procedure and in fact the proceedings u/s 145 of the Code of Criminal Procedure should not have been initiated at all. The revision was accordingly allowed and the entire proceedings culminating in the order of attachment u/s 146(1) of the Code of Criminal Procedure was quashed.

learned Counsel for the Petitioner has urged that the revision filed by Gulab Chand was not maintainable as the order passed by the Magistrate u/s 146(1) of the Code of Criminal Procedure had to be taken to be an order of an interlocutory nature within the meaning of Section 397(2) of the Code of Criminal Procedure. The contention is that in such a circumstance, the revision should have been dismissed and no interference in the order of attachment passed by the Magistrate could have been made exercising the revisional jurisdiction when the revision itself was not maintainable. Reliance in this connection is placed on the decision of this Court in the case of Jagannath Singh Chaudhari and Ors. v. Smt. Shakuntala, in 1990 AWC 119. In the aforesaid decision, a learned single Judge of this Court while drawing support from the observations made by a Division Bench of this Court in the case of Shri Dhar and Another Vs. The Deputy Director of Consolidation and Others, , had held that an order of attachment passed u/s 146(1) of the Code of Criminal Procedure is nothing else but an interlocutory order within the meaning of Section 397(2) of the Code of Criminal Procedure and that the latter section barred the filing of a revision petition against such an order and. therefore, an order passed u/s 146(1) of the Code of Criminal Procedure cannot be challenged in a revision filed u/s 397 of the Code of Criminal Procedure. It may be noticed that the aforesaid decisions was rendered in a criminal revision filed before this Hon''ble Court which was directed against an order passed by the Sessions Judge.

The contention to the similar effect was made before the Sessions Judge challenging the maintainability of the revision. Sessions Judge, however, had come to the conclusion that since he had summoned the entire record, he could correct any error of Jurisdiction which was apparent on the face of the record.

A learned single Judge of this Court in the decision in the case of Smt. Minta Devi and Ors. v. Anant Ram alias Antu XXXIV (1997) ACC 566, had clarified that when the revisional court calls for the record of an inferior criminal court u/s 397 of the Code, it enjoys power to examine the correctness or propriety of the findings of the court below and while exercising the revisional power, the revisional court exercises powers of an appellate court by virtue of Section 401 of the Code of Criminal Procedure. It was emphasised that the Court of Session is vested with the jurisdiction to go into the correctness or the propriety or findings recorded by the court below.

learned Counsel for the Petitioner has strenuously contended that the proceedings u/s 145 of the Code of Criminal Procedure including the order u/s 146(1), passed therein could not have been set aside merely because of the pendency of the civil suit and the interim order requiring maintenance of the status-quo passed by the civil court. In this connection, as noticed by the civil court on 9.11.1996, the suit had been filed on 11.9.1995 and on the same date, an interim order requiring the parties to maintain status-quo on the spot had been issued which interim order continued to remain in operation with the extension granted by the trial court. It is also not disputed that during the pendency of the suit and the currency of the interim order referred to hereinabove, that the proceedings u/s 145, Code of Criminal Procedure were initiated on the report of the Police Station Rajghat dated 24.12.1995. On the receipt of the report, the Magistrate had passed an order on 1.1.1996, calling upon the parties to submit their oral/documentary evidence upto 6.1.1996. Subsequently on the basis of the report of Station Officer dated 19.4.1996, the Magistrate had passed an order attaching the property on 5th June, 1996.

The expression ''status-quo'' signifies existing state of affairs on a given date or existing state of things at any given date. This word had its origin in Latin. It seems to me that an order requiring the parties to maintain ''status-quo'' amounts to an injunction to both the parties to a suit requiring them to maintain the state of things existing on the date of the issuance of the order. Since such an order requires the parties to a suit to maintain the state of things as they are on the date of the order, it is obvious that the parties stand restrained from altering in any manner whatsoever the state of things as they stand on the date when the order is passed or is communicated to them. Such an order amounting to the grant of injunction prohibiting the parties to suit from changing or altering the state of things as they stand on the date of the order or on the date of the communication of the order is binding so long as it is not set aside, varied or modified not only on the parties to the suit but also prohibits any authority dealing with the rights of the parties to the suit in respect of the subject-matter of the suit in the seizing of the civil court. The parties to the suit cannot ignore or act contrary to the order of interim injunction requiring maintaining status-quo and if they do so, they do it not only on the risk of being proceeded with for commiting the contempt of court and being dealt with suitably, the civil court which had passed the interim order of injunction requiring the parties to maintain status-quo, if it comes to the conclusion that there has been an alteration therein during the subsistence and currency of the interim injunction, could pass suitable orders to restore the status-quo ante so as to bring in existence the same state of affairs which existed on the date of the passing of the order of interim injunction of maintaining status-quo. The civil court stands vested with ample jurisdiction in this regard and take appropriate action in the exercise of inherent jurisdiction.

It may further be noticed that an order of attachment whether it is passed by the criminal court or a civil court has the necessary effect of dispossessing the party in actual physical possession thereof on the date of the enforcement of the order of attachment, while it is true that with the attachment, the property attached becomes custodia legis and the possession of the court is to ensure to the benefit of the real owner, however, in face of the partition decree and the admissions contained in the compromise which formed part of the decree specially in the absence of any assertion to the effect that the Plaintiff who had filed the suit for partition had been dispossessed and further in face of the injunction running against the contesting Respondents which had been issued by the civil court of competent jurisdiction, there could be no justification for the criminal court to create a situation which could undermine the final decree passed by the civil court or adversely affect the interim injunction order which had to be respected by the criminal court. In the circumstances referred to hereinabove, there can be no escape from the conclusion that the order of attachment passed by the criminal court was manifestly illegal.

Even if it be assumed that the revision filed by Gulab Chand was not maintainable or entertainable, it cannot be lost sight of that the ultimate effect of the order passed by the Sessions Judge is that the entire proceedings in question u/s 145 of the Code of Criminal Procedure including the order passed u/s 146(1) of the Code stand quashed. Since it has already been found hereinabove that the order passed by the Magistrate which was the subject-matter of the revision referred to hereinabove was itself manifestly illegal, any interference in the ultimate order passed by the Sessions Judge will result in revival of a manifestly illegal order which has to be avoided in the present proceedings under Article 226 of the Constitution of India.

In view of my conclusions indicated hereinabove, no Justifiable ground has been made out for any interference by this Court, while exercising the extraordinary Jurisdiction envisaged under Article 226 of the Constitution of India.

The writ petition is accordingly dismissed.