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2017 DIGILAW 1037 (JK)

Mamta Saini v. Krishan Chand

2017-11-28

JANAK RAJ KOTWAL

body2017
ORDER : 1. This is a petition under section 561-A Cr.P.C. against order dated 28.03.2012 passed by the learned Sessions Judge, Kathua in a revision petition, whereby the order dated 10.10.2011 for attachment of land passed by the Executive Magistrate 1st Class (Tehsildar) Kathua under Section 145(4) Cr.P.C. has been set aside. 2. Heard learned counsel for the parties and perused the record. 3. Learned counsel for the petitioner would say that the order dated 10.10.2011 was passed by the learned Executive Magistrate under section 145(4) Cr.P.C. whereby the disputed land was attached and kept at the Sapurdari of Lamberdar of the area. Learned counsel submitted that the impugned order dated 28.03.2012 is assailed on the ground that an order passed under section 145(4) Cr.P.C. is interlocutory order, which is not revisable, and, therefore, the learned Sessions Judge has exercised the revisional jurisdiction, which he did not have. Learned counsel relied upon a Full Bench judgment of this Court in Brij Lal Chakoo vs. Abdul Ahad Nishati and Others, 1979 KLJ 377 and a Single Bench judgment in Fareed Ahmed vs. Parvez Ahmed and Others, 2013 (2) JKJ 184 . 4. Per contra, learned counsel for the respondents, Mr. Raghu Mehta, argued that a revision petition against order of attachment passed under section 145(4) Cr.P.C. is maintainable and, therefore, supported the impugned order passed by learned Sessions Judge. Mr. Mehta relied upon two judgments of this Court in Qadir Bangroo and Another vs. Subhan Shigan, AIR 1957 J&K 51 and Charanjit Lal vs. Mst. Rubeena, 1998 SLJ 224. 5. On perusal of the record on the file of the Magistrate, it has been found, which is not disputed, that the preliminary order in terms of section 145(1) Cr.P.C. was drawn by the learned Magistrate on 05.09.2011, whereby, while recording his satisfaction that there was apprehension of breach of peace in the area, he issued notice to the parties to file their objections and documents in support of their respective possession of the disputed property. The attachment order was passed by the learned Magistrate on 10.10.2011. It emerges as a common ground of both the sides that the preliminary order drawn on 05.09.2011 was not challenged by either of the parties, before the attachment order came to be passed on 10.10.2011. 6. The attachment order was passed by the learned Magistrate on 10.10.2011. It emerges as a common ground of both the sides that the preliminary order drawn on 05.09.2011 was not challenged by either of the parties, before the attachment order came to be passed on 10.10.2011. 6. The impugned order passed by the learned Sessions Judge on its plain reading would show that the revision petition was filed by herein respondents against attachment order dated 10.10.2011 alone though one of the grounds taken was that the preliminary order was not passed by the Magistrate in accordance with law inasmuch as no satisfaction was recorded that there was apprehension of breach of peace on spot. 7. An order for attachment of the disputed property in a proceedings under section 145 Cr.P.C. is passed under third proviso to Sub-Section (4) of Section 145 Cr.P.C. The order of attachment can be passed by the Magistrate at any stage in the proceedings under section 145 Cr.P.C. if the Magistrate considers the case one of emergency. Legal position arising in terms of Sub-Section (4-a) of Section 435 Cr.P.C. inserted vide Amendment Act No. No. XXXVII of 1978 is well settled and is no more res-integra. It may be stated here that the entire section 435 Cr.P.C. as it was after the Act No. XXXVII of 1978 has been recasted vide Act No. XI of 2006. Sub-Section (4-a) as it was inserted vide Amendment Act No. XXXVII of 1978 and Sub-Section (2) as enacted vide Act No. XI of 2006 are reproduced: "(4-a) The powers of revision conferred by this section shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings." "(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to an interlocutory order passed in any appeal, industry, trial or other proceedings." 8. Application of Sub-section (4-a) of Section 435 Cr.P.C. to an order of attachment passed by a Magistrate under third proviso to Sub-section 145(4) has been considered by the learned Full Bench of this Court in a similar fact situation in Brij Lal Chakoo's case (supra). 9. Application of Sub-section (4-a) of Section 435 Cr.P.C. to an order of attachment passed by a Magistrate under third proviso to Sub-section 145(4) has been considered by the learned Full Bench of this Court in a similar fact situation in Brij Lal Chakoo's case (supra). 9. The learned Full Bench by its majority decision (Anand J and Mir J) has held in paragraphs 37 of the Judgment that a revision petition against an order under section 145(1) Cr.P.C. is maintainable but the bar in Section 435(4-a) Cr.P.C. is attracted to a revision petition filed only against an order of attachment under the third proviso to sub-section (4) of Section 145 Cr.P.C. Paragraph 37 is reproduced: "In view of the majority judgment, it is held that a revision petition against an order under Section 145(1) Cr.P.C. in the circumstances explained in the judgment, is maintainable but the bar of Section 435(a)(4) Cr.P.C. is attracted to a revision petition filed only against an order of attachment, under the third proviso to sub-section (4) of Section 145 Cr.P.C. As a result Criminal Revision Petition No. 28 of 1979, Brij Lal Chakoo vs. Abdul Ahad Nishati and Others, is held maintainable, while Criminal Revision No. 34 of 1979, Rehman Malik and Others vs. Ghulam Nabi Mir and Criminal Revision No. 41 of 1979, Ahad Sheikh vs. Mehda Sheikh and Others, are held not maintainable in view of the bar contained in Section 435(a)(4) Cr.P.C. and are, therefore, dismissed. Cr. Revision No. 28 of 1979, Brij Lal Chakoo vs. Abdul Ahad Nishati and Others, shall now be placed before the learned Single Judge for its disposal on merits." 10. Qadir Bangroo's case relied upon by the learned counsel for the respondents relates to the era prior to insertion of Sub-Section (4-a) in Section 435 Cr.P.C. by the amendment Act No. XXXVII of 1978 and, therefore, cannot be relied upon for determination of the proposition involved in this case. 11. In Charanjit Lal's case the question in regard to maintainability of revision petition against order of attachment passed under Section 145(4) Cr.P.C. has not been discussed by this Court. The attachment order passed therein was set aside by this Court for the reason that no preliminary order was passed by the learned Magistrate. 11. In Charanjit Lal's case the question in regard to maintainability of revision petition against order of attachment passed under Section 145(4) Cr.P.C. has not been discussed by this Court. The attachment order passed therein was set aside by this Court for the reason that no preliminary order was passed by the learned Magistrate. In the case on hand, however, preliminary order was duly passed by the learned Magistrate on 05.09.2011, which was not challenged by either of the parties. 12. In view of the Full Bench judgment (supra) of this Court the revision petition against the attachment order filed by herein respondents before the learned Sessions Judge, Kathua was not maintainable as the order is not revisable in terms of Sub-Section (2) of Section 435 Cr.P.C. [earlier Sub-section (4-a)]. The impugned order passed by the learned Sessions Judge, Kathua, therefore, is illegal being without jurisdiction. 13. For aforementioned, this revision petition succeeds and in the result, the impugned order dated 28.03.2012 passed by the learned Sessions Judge, Kathua is set aside. 14. Record of the learned Magistrate be remitted back along with a copy of this order. 15. Disposed of.