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Judgment
B.K. Rathi, J.—By means of this revision u/s 397/401, Cr. P.C. the revisionist has prayed for quashing of the order dated 5.2.1999, passed by Special Judge (S.C./S.T. Act), Basti in Criminal Revision No. 1 of 1999.
I have heard Sri S. K. Singh, learned Counsel for the revisionist, Sri R. K. Tripathi, learned Counsel for opposite party Nos. 2 to 6 and the learned A.G.A.
The facts giving rise to this revision are as follows
A report was submitted on 15.11.1998, by the police before the Sub-Divisional Magistrate, Harraiya, Basti, to start proceedings u/s 145, Cr. P.C. regarding agricultural plots Nos. 311, 332 and 437. On the basis of the said report a preliminary order u/s 145, Cr. P.C. was passed on 22.12.1998. This order was challenged in Criminal Revision No. 1 of 1999. The revision has been allowed by the impugned order dated 5.2.1999 by Special Judge (S.C./S.T. Act) and he has quashed the order dated 22.12.1998, passed by Sub-Divisional Magistrate, Harraiya, Basti and dropped the proceedings u/s 145, Cr. P.C. Aggrieved by that order, the revisionist has approached this Court.
In my opinion the learned Special Judge has exceeded his jurisdiction in quashing the order and dropping of the proceedings. It is settled law that order u/s 145(1), Cr. P.C. is a interlocutory order against which the revision is barred by mischief of Clause (2) of Section 397, Cr. P.C. The revision was therefore, not maintainable before the Additional Sessions Judge and he has erred in entertaining the revision and allowing the same.
Regarding the merits, it may also be mentioned that the approach of the learned Special Judge in this matter was totally erroneous. It is admitted that a civil suit is pending between the parties regarding the same land. However, it is also admitted that till now no effective order regarding the possession of any part has been passed in the civil suit. Unless there is any adjudication of rights by the civil court the proceedings u/s 145, Cr. P.C. is not barred merely by pendency of the civil suit. If there is any apprehension of breach of peace the Magistrate may start proceedings u/s 145, Cr. P.C. notwithstanding that the dispute regarding the property is pending before the civil court. In case there is any effective order regarding the possession of any party of the civil court the Magistrate may not start the proceedings u/s 145, Cr. P.C. and may only start proceedings u/s 107/106, Cr. P.C.
In the circumstances on the facts also the order of the Special Judge can not be maintained.
The revision is accordingly allowed and the order of the learned Special Judge mentioned above is quashed. It is ordered that the learned Magistrate may proceed with the proceedings u/s 145, Cr. P.C. in pursuance of the preliminary order dated 22.12.1998 u/s 145(1), Cr. P.C.