Manohar Lal vs Sheo Lal

R.L. Anand, J.

The submission made by the learned counsel for the respondents was that the order dated 3.4.1998 passed by the S.D.M. Sirsa was a composite order and in these circumstances revision before the Court of Session was competent. In the alternative it was submitted by the learned counsel for the respondents that even for the purpose of Section 146(1) Cr.P.C. the order dated 3.4.1998 is not an interlocutory order as it has finally adjudicated some rights of the parties. The learned counsel for the respondents relies upon Keshavprasad Bhatt v. Rameschandra, 1990 Crl. L.J. 1541, Amar Nath and others v. State of Haryana and ors., AIR 1977 SC 2185, Madhu Limaye v. State of Maharashtra, AIR 1978 S.C. 47. On the contrary, the learned counsel for the petitioners relies upon Kartar Singh and ors. v. Smt. Pritam Kaur & anr., 1984(1) RCR 617(DB) : 1985(1) CLR 338, a Division Bench authority of this Court where it has been held that order passed under Section 146(1) Cr.P.C. is an interlocutory order withim the meaning of Section 397(2) of the Cr.P.C. and as such revision against the same is barred.

In this case the Calander was filed against Sheo Lal and others on 20.3.1997 and a prayer was made by SHO, Police Station Nathusari Chopta for the attachment of the land and it was also prayed by the SHO to appoint a receiver as he felt that there might be a breach of peace over the immovable property. On receipt of the Calender, the learned SDM issued notice to both the parties for 21.4.1997. At that point of time he did not pass the order under Section 146(1) Cr.P.C. Subsequently the order dated 3.4.1998 has been passed holding as follows :

"Accordingly agreeing with the fact and I attach the land in dispute under Section 146(1) Cr.P.C. and I appoint Naib Tehsildar Nathusari Chopta as the receiver and direct that Naib Tehsildar should get cultivated the land in dispute under his own supervision. The file be put up before me on 30.4.1998 for evidence."

The above would show that the impugned order dated 3.4.1998 was purely passed under Section 146(1) Cr.P.C. and it was not a composite order as contended by the learned counsel for the respondents. The main proceedings under Section 145 Cr.P.C. continued with the learned S.D.M. Now the point for determination is what was the remedy of the aggrieved party against the order dated 3.4.1998. The aggrieved party filed a revision, which was accepted and order dated 3.4.1998 was set aside by learned Addl. Sessions Judge, Sirsa on 13.5.1998.

The legal plea which has been taken up by the learned counsel for the petitioners is that the revision before the learned Addl. Sessions Judge was not competent in view of the Division bench authority. I fully agree with the submission raised by the learned counsel for the petitioners because the order passed by the learned S.D.M. is interlocutory in nature which specifically bars a revision under Section 397(2) Cr.P.C. Even the reading of Section 146(1) would show that an order passed in emergency by the S.D.M. can at time be withdrawn by him by virtue of the proviso which has been added to Section 146(1) Cr.P.C. This proviso reads as under :

"Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute."

One citation relied upon by the learned course for the respondents is Division Bench judgment and the two judgments of the Hon''ble Supreme Court are in a different context. The ratio of the judgments in only to the effect that under what circumstances an order can be held to be interlocutory in nature. I have already held above that the order passed under Section 146(1) Cr.P.C. is interlocutory in nature. It does not finally decide and conclude the rights of the parties. The parties are free to make a request to the S.D.M. that there was no likelihood of breach of peace and that the order ought to have been recalled. The respondents have not adopted that remedy. If the respondents though proper that the impugned order passed by the learned S.D.M. was inherently illegal, they could take up that matter in 482 Cr.P.C. proceedings. That remedy has also not been adopted. In these circumstance, I am of the opinion that the learned Addl. Sessions Judge assumed wrong jurisdiction in deciding the revision. The revision of the respondents was not competent and in these circumstances I allow the present petition, reverse the order of the learned Addl. Sessions Judge with the clear observations that it will be open to the respondents to challenge the order of the SDM either before him under the proviso added to subsection (1) of Section 146 Cr.P.C. or under Section 482 Cr.P.C.

Nothing stated above shall amount an expression of my opinion on the merits of the order.