Ram Das Singh vs State of U.P. and Others

G.D. Dube, J.—This revision has been preferred against the judgment and order of Third Additional Sessions Judge, Gorakhpur, setting aside the order of the Executive Magistrate/Sub Divisional Magistrate, Khajani, Gorakhpur, attaching the property in dispute u/s 146(1) of the Code of Criminal Procedure (hereinafter referred to as the Code).

The facts are very brief. On a report of Station Officer, Police Station Khajani dated 17-6-1989, the Magistrate passed the preliminary order u/s 145(1) of the Code. An application supported by affidavit was moved by first party on 5-7-1989 to attach the property as there was serious apprehension of breach of peace. The learned Magistrate, being satisfied that there was emergency, attached the property. This gave rise to a revision before the Sessions Judge which was decided by Third Additional Sessions Judge as stated above.

It has been urged that the learned Sessions Judge had no jurisdiction to sit in judgment over the element of satisfaction of the Magistrate. My attention was drawn to Jagannath Singh Chauhan v. Smt. Shakuntla 1990 AWC 119. It was argued that in the above case the impugned order of the Magistrate u/s 146(1) of the Code was an interlocutory order. No revision was maintainable against it.

As against the above argument, learned Counsel for the opposite-parties urged that mere statement by the Magistrate that there may be breach of peace cannot be taken as a case of emergency. The order must indicate why the Magistrate thought it so. If it was not done, then such an order cannot be sustained. In support of his contention, learned Counsel for the opposite-parties has relied upon Amrit Singh and Others Vs. Gyandeo Sharma and Another, , B. Dasso Patro and Others Vs. B. Tariniga Patro and Another, and Raghubir Singh v. Asharfi Lal 1987 ACR 127.

The learned Sessions Judge has considered the cases cited by the Counsel. The learned Sessions Judge came to the conclusion that for invoking the provisions of Section 146(1) of the Code, the learned Magistrate should show that there was an emergency. Since the order of the learned Magistrate does not show that there was an emergency, hence the order passed u/s 146(1) of the Code was not an interlocutory order.

The Third Additional Sessions Judge has mis-interpreted the impugned order of the Magistrate passed u/s 146(1) of the Code. The short order of the learned Magistrate itself speaks that on a report received from the police-station he had drawn the preliminary order. Only after the first party had moved the petition supported by an affidavit, the learned Magistrate had opined that there was an emergency and had passed, order of attaching the property.

It is now concluded by a Division Bench decision of this Court in the case of Inder Deo Pande v. Bhagwati Devi 1981 AWC 314, that an order purely of an intermediate or temporary nature during the pendency of the proceedings u/s 145 of the Code directing attachment of property u/s 146(1) of the Code is an interlocutory order. The Division Bench decision of this Court is binding on this Court. The order of the learned Magistrate clearly indicates that the attachment was to continue during the pendency of the case u/s 145 of the Code. The satisfaction ought to be that of a Magistrate. The Sessions Judge acting as a revisional court could not sit in judgment over the satisfaction of the learned Magistrate. The Magistrate had not taken any action of attaching the property on receipt of a Challani report. He had acted only when he was moved by an application supported by affidavit on 5-7-1989 by the first party, praying to attach the property. There was sufficient material for the learned Magistrate to act u/s 146(1) of the Code. There was no justification to interfere with the order of the lower court.

The case of Amrit Singh (supra) was a case of Patna High Court. The case of B. Dasso Patro (supra) was a decision given by Orissa High Court The case of Raghubir Singh (supra) also does not help the applicant. In this case, Hon''ble R.P. Shukla, J. had observed that an order u/s 146 of the Code, if passed in emergency, would amount to an interlocutory order. The facts contained in the order of the learned Magistrate indicate beyond doubt that he considered the case of an emergency and being satisfied by the application dated 5-7-1989 of the opposite-parties had passed the impugned order. Revision was not maintainable. The above facts go to show that the learned Sessions Judge had erred in entertaining the revision. He was not justified in sitting in the judgment over the learned Magistrate on his satisfaction about the emergency. The impugned order is not sustainable. It ought to be set aside.

In the result, the revision succeeds and is allowed. The judgment and order of the lower court are set aside. The order passed by the learned Magistrate on 5-7-1989 is restored. Let a certified copy of this judgment be sent expeditiously to the learned Magistrate for further proceedings in the case.