Shashi Kant vs 12th A.D.J. and Others

R.R.K. Trivedi, J.—Heard learned Counsel for the applicant.

The facts giving rise to these two criminal revisions are with regard to the land recorded in Khata No. 204, Proceedings u/s 145, Code of Criminal Procedure were initiated by the learned Magistrate, on 15.4.1994 by passing the preliminary order and also an order u/s 146(1) attaching the land in dispute. Both these orders were challenged in two criminal revisions before the Sessions Judge, Meerut. The revisions have been allowed and the orders dated 15.4.1994 and the proceedings u/s 145(1), Code of Criminal Procedure have been set aside. Aggrieved by the order of the Additional District Judge, the applicant has come to this Court.

The main reason for setting aside the order of the learned Magistrate and for setting aside the proceedings u/s 145(1), is that civil suit is pending between the parties for partition, with regard to the property in dispute as original suit No. 658 of 1990, Shashi Kant v. Anil Kumar in the Court of 1st Civil Judge, Meerut, Learned Sessions Judge has taken the view that as the suit is pending between the parties they can get appropriate orders with regard to the possession and preservation of property from the same court where the dispute is pending. It has not been found proper to continue the proceedings u/s 145, Code of Criminal Procedure. It has also been noticed that before the present proceedings, an application u/s 145, Code of Criminal Procedure was filed by the present applicant which was rejected by the learned Magistrate by order dated 20.1.1994 on the ground that for the property in dispute a suit for partition is pending. There could not be any justification for passing different order dated 15.4.1994 with regard, to the same property. Learned Counsel for the applicant, however, has placed reliance in case of Prakash Chand Sachdeva Vs. The State and another, . I have perused the judgment, and, in my opinion, the view expressed by Hon''ble Supreme Court in the above case cannot be applied in the facts of the present case, as admittedly in partition suit pending before the Civil Court question of title is involved. In view of this the order of learned Sessions Judge does not suffer from any illegality.

The next submission of the learned Counsel for the applicant is that orders under Sections 145(1) and 146(1), Code of Criminal Procedure were interlocutory orders and revisions against such orders were not maintainable. Section 397(2) prohibits revision against the interlocutory orders. In the present case two admitted facts are that with regard to the same property learned Magistrate refused to initiate proceedings u/s 145, Code of Criminal Procedure on 20.1.1994. However, on 15.4.1994 he passed different order though there was no change in the circumstances of the case. It is also not in dispute that the parties are contesting the question of title as well as of possession in the Civil Court and they can get appropriate orders with regard to possession and preservation of property in the suit itself. In these circumstances the order passed by learned Magistrate was illegal, improper and incorrect and in fact amounted to abuse of process of Court. The word ''Interlocutory order'' has to be understood and interpreted in the light of the facts and circumstances of each case. In a given case, like the present one, apparently the order may appear to be interlocutory but if the veil is lifted its real nature and import may be such that it may not amount to interlocutory order. In my opinion the revisional Court rightly interferred for correcting the error and for preventing abuse of process of Court.

For the reasons stated above, I do not find any merit in the revisions and they are accordingly rejected. However, it shall be open to the applicant to move applications before the learned Civil Judge to obtain necessary order for protection of his rights, if so advised. If the applicant files any application, the same shall be expeditious disposed of without any delay.