Ram Kumar vs State of Haryana

P.K. Jain. J.

This petition has been filed under Section 482 of the Code of Criminal Procedure (for short ''the Code'') for quashing Kalandra (Annexure P.1), order dated January 17, 1994 (Annexure P.2) passed by the Sub Divisional Magistrate, Hissar, as well as order dated February 10, 1995 (Annexure P.3), passed by the Additional Sessions Judge, Hissar.

The necessary facts for the disposal of this petition are that a Kalandra under Section 145 of the Code was filed by the Police Station, Adampur, alleging therein that there was a dispute between Ram Kumar and 2 others on the one hand and Banwari Lal and another on the other on a piece of land measuring about 30 Kanals, the details of which have been given in the Kalandra, due to which there was an apprehension of breach of peace. Being prima facie satisfied with the averments made in the Kalandra and the statement of ASI Ram Kumar recorded on 6.1.1994, Sub Divisional Magistrate, Hissar, passed an order under Section 145(1) of the Code, calling upon the parties to attend his Court and file written statements of their respective claims. The SubDivisional Magistrate also passed an order under section 146 of the Code attaching the land measuring 30 Kanals and appointing Tehsildar, Adampur, as a Receiver in the management of the property till final order of the Court or of any other competent authority.

Feeling aggrieved with the aforesaid two orders passed under Sections 145(1) and 146 of the Code, the second party Ram Kumar (the petitioner herein) and two others preferred a revision petition before the Additional Sessions Judge, Hissar. By the impugned order dated 10.2.1995 (Annexure P.3), the Additional Sessions Judge, rejected the revision petition solely on the ground that the orders in question were interlocutory in nature and revision petition was not maintainable. Hence the present petition.

Notice of motion was given to the respondents. I have heard the learned counsel for the parties and have perused the record.

Shri G.S. Jaswal, Advocate, learned counsel for the petitioner has fairly conceded that an order passed under section 146(1) of the Code is an interlocutory in nature and no revision is maintainable against such an order. However, the learned counsel has argued that an order passed under section 145(1) of the Code cannot be said to be interlocutory in nature since it concerns the jurisdiction of the Magistrate to initiate the proceedings and the Court of revision is competent to examine the material available on the record to see whether the Executive Magistrate could under law assume jurisdiction to initiate the proceedings under section 145(1) of the Code. Reliance has been placed upon a recent judgment of this Court rendered in Surinder Singh and others v. State of Punjab and others, 1996(2) Recent Criminal Reports 154 : 1996(2) RC 188 .

On the other hand Shri R.K. Arora, Advocate, learned counsel for the respondents Nos. 1 and 2 has argued that an order passed under section 145(1) of the Code is also interlocutory in nature and no revision is maintainable against the same. The learned counsel has placed reliance upon a Division Bench judgment of this Court rendered in Kartar Singh and others v. Smt. Pritam Kaur and another, 1984 Cri. L.J. 248.

I have considered the respective arguments advanced at the Bar. As regards the order passed under section 146(1) of the Code by the Sub Divisional Magistrate, there is no dispute between the parties that the same is interlocutory in nature and no revision is maintainable against such an order. The only question remains for decision is as to whether an order under section 145(1) of the Code is interlocutory in nature. The said question has been recently considered at length and answered by this Court in the case of Surinder Singh (supra). After noticing the Division Bench judgment of this Court in Kartar Singh''s case (supra) and while placing reliance upon a Full Bench judgment of the Jammu and Kashmir High Court in Bril Lal Chakoo etc. v. Abdul Ahad Nishati and others, 1980 Crl. L.J. 89, the question has been answered in the following words:

"In view of the foregoing discussion, it is abundantly clear that while a revision against an order passed under Section 145(1) of Code of Criminal Procedure is legally maintainable and is not barred under Section 397(2) of the Code of Criminal Procedure as the same is not an interlocutory order and is in fact an order which touches the jurisdiction of the Magistrate to initiate the proceedings, an order passed under Section 146(1) of the Code is undoubtedly an interlocutory order and the same is not amenable to revisional jurisdiction and would be barred under Section 397 of Code of Criminal Procedure."

Thus, the assumption of jurisdiction of the Magistrate under Section 145 of the Code and the making of the preliminary order under the Section cannot be said to be a mere interlocutory order. The foundation upon which the jurisdiction of the Magistrate to proceed under section 145 is based is the satisfaction of the Magistrate that there is a dispute relating to possession of immovable property and that there is an apprehension of beach of the peace on the spot. That being so, the learned Additional Sessions Judge committed an error in law in not examining the legality and validity of the order passed by the Sub Divisional Magistrate, Hissar under section 145(1) of the Code. However, the view expressed by the learned Sessions Judge, regarding the revision against the order passed under section 146(1) of the Code being an interlocutory order and barred under section 397(2) of the Code is valid and legally sound.

For the foregoing reasons, this petition succeeds in part. The impugned judgment dated 10.2.1995 (Annexure P.3) passed by the Additional Sessions Judge is set aside in so far as the maintainability of revision filed against the order of the Sub Divisional Magistrate, passed under Section 145(1) of the Code is concerned. The Additional Sessions Judge, Hissar, is directed to hear the parties on merits regarding the validity and legality of the order passed by the Sub Divisional Magistrate under Section 145(1) of the Code only and to dispose of the same expeditiously, preferably within two months from the date of receipt/production of certified copy of this order. The parties are directed to appear before the Additional Sessions Judge, Hissar, on May 23, 1996.