Shamsher Singh vs State of U.P. and Others

R.P. Shukla, J.—This is an application u/s 482 Code of Criminal Procedure moved by one Shamsher Singh praying to quash the order dated 16-8-1981 passed by the Second Additional Sessions Judge, Bijnor in Ajaib Singh v. Shamsher Singh, Criminal Revision No. 16 of 1981. It has further been prayed that the order dated 31-12-1980 passed by the Sub-Divisional Magistrate, Najibabad in proceedings u/s 145, Code of Criminal Procedure in Shamsher Singh v. Ajaib Singh, Case No. 10 of 1981be restored.

The relevant facts of the case are that Shamsher Singh moved an application u/s 145, Code of Criminal Procedure claiming his exclusive possession over Khasra plot No. 27; area 27 bighas 13 biswas and 6 biswansis situate in village Doodhala Dayalwala, Police Station Shyampur, district Bijnor. He apprehended breach of peace at the hands of opposite parties Ajaib Singh, Tarsem Singh, Surendra Singh and Gajjan Singh who too claimed their possession over the same land. The Sub-Divisional Magistrate passed a preliminary order u/s 145 Code of Criminal Procedure on 4-12-1979 and ordered the parties to adduce their respective evidence. The Sub-Divisional Magistrate, after considering the evidence of the parties, came to the conclusion that he was unable to satisfy himself as to which of the two parties was in possession over the disputed plot at the time of the passing of the preliminary order or two months prior to it and, therefore, he attached the disputed plot u/s 146(1) Code of Criminal Procedure until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. He passed this order u/s 146(1), Code of Criminal Procedure on 31-12-1980. Aggrieved by this order, the opposite-parties went in revision and the Second Additional Sessions Judge, Bijnor by his order dated 16-6-1981 set aside the said order of the Sub-Divisional Magistrate and dropped the proceedings because he found that the land in dispute was in joint possession of the parties.

It has been urged by counsel for the applicant that in view of the clear cut finding of the Sub-Divisional Magistrate that he could not satisfactorily decide as to which party was in possession over the disputed plot on the date of the preliminary order or two months prior to it, the Second Additional Sessions Judge could not set aside this order by substituting his own finding in regard to the possession over the disputed plot. The above being a finding of fact could not be disturbed in revision. It has further been urged by counsel for the applicant that the order of the Magistrate could not be revised by the Sessions Judge as it was an interlocutory order.

Section 397(2) of the Code of Criminal Procedure reads as under:

The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding.

An interlocutory order is not defined any where in the Code of Criminal Procedure. However, an interlocutory order is not an order finally determining the rights of the parties but an order at intermediate stage of the proceeding for the purpose of advancing the proper decision of the subject matter of dispute.

The Sub-Divisional Magistrate has not finally adjudicated the rights of the parties, but has only referred the matter to the civil court for determination of the rights of the parties with regard to the person entitled to the possession thereof. The main purpose of attachment u/s 146(1) Code of Criminal Procedure is two fold; (i) the property should remain intact for the benefit of the right claimant and (ii) breach of peace between the parties may be avoided. The order of attachment u/s 146(1), Code of Criminal Procedure is made subsequent to the passing of an order u/s 145(1), Code of Criminal Procedure and prior to the final decision of the case u/s 145(4) read with Section 145(6), Code of Criminal Procedure. The order u/s 146(1), Code of Criminal Procedure does not decide or touch the important rights or liabilities of the parties. It does not go to decide the rights of any party to the proceedings. Such order is, therefore, an interlocutory order against which revision is barred by Section 397(2), Code of Criminal Procedure.

In the light of the above observations, the Sessions Judge acted erroneously in entertaining the revision and setting aside the finding of the Sub-Divisional Magistrate by substituting his own finding therein.

In the result, the application succeeds and is allowed. The order of the Sessions Judge, dated 16-6-1981 passed in Ajaib Singh v. Shamsher Singh, Criminal Revision No. 16 of 1981, is hereby quashed and the order of the Sub-Divisional Magistrate, Najibabad district Bijnor, dated 31-12-1980 in proceedings u/s 145 Code of Criminal Procedure Shamsher Singh v. Ajaib Singh, in case No. 10 of 1981 is restored.