An order of attachment of immovable property under Section 146(1) of the Code of Criminal Procedure, 1973, is interlocutory in nature and, therefore, revision against it is not maintainable under Section 397(2) of the Code.

S.S.SANDHAWALIA, J.

1. Is the order of attachment of immovable property under Sec.146(1) of the Code of Criminal Procedure, 1973, interlocutory in nature within the meaning of Sec.397(2) of the said Code? This is the somewhat salient issue necessitating this reference to the Division Bench. Equally at issue is the correctness of the cryptic observation of the learned single Judge in Ishri Gope V/s. Krishna Kumari Devi, 1978 BLJR 220 : (1977 Cri LJ NOC 195) holding to the contrary.

2. It is manifest that the issue aforesaid is pristinely legal and stems from facts which lie in a narrow compass and, therefore, deserve notice with relative brevity. Opposite Party No. 2 Baleshwar Mahto had initiated the proceeding by filing a petition before the Sub-Divisional Magistrate, Gopalganj, under Sec.144 of the Code of Criminal Procedure (hereinafter to be referred to as the Code), with respect to the disputed pieces of land situate in villages Aithi, Ratanpur and Koha Poha within the jurisdiction of Bijaipur. The learned Sub-Divisional Magistrate called for a report from the local police and a proceeding under Sec.144, was initiated which was subsequently converted into one under Sec.145 and the case was transferred to the Court of Shri Ram Lakhan Prasad, Executive Magistrate, Gopalganj. Before him, opposite party No. 2 then filed a petition for attachment of the land in dispute under Sec.146(1) of the Code which was directed to be forwarded to another Executive Magistrate, Shri Kanhaiya Shrivastava, for inquiry and report. On the receipt of the said inquiry report, opposite party No. 2 filed another petition for attachment of the disputed land under Sec.146(1) of the Code to which the petitioners filed a rejoinder and their objections to the inquiry report of the Executive Magistrate. However, rejecting the plea of the petitioners, the learned Magistrate, by his impugned order dated the 28th of September, 1985, attached the disputed land under Sec.146(1) of the Code.

3. Aggrieved thereby, the petitioners then preferred a revision before the learned Sessions Judge of Gopalganj. This revision was, however, strenuously opposed at the very threshold as being not maintainable on the ground that the impugned order of the Magistrate was interlocutory in nature and a revision against the same was hit and barred by the provisions of Sec.397(2) of the Code. In a considered judgment running into 12 typed pages, the learned Sessions Judge upheld the objection and finding that the revision was not maintainable, dismissed the same (vide his order dated the 9th of May, 1986),

4. The petitioners thereafter preferred the present criminal miscellaneous which came up for admission before my learned brother, S. B. Sanyal, J., sitting singly. Noticing the intricacy of the point and some conflict .of precedent thereon, he referred the matter by the order dated 24th of November, 1986, and that is how the issue is before us now.

5. Undoubtedly, the primal and, indeed, the sole question herein which has been posed at the outset does indicate a cleavage of judicial opinion betwixt the different High Courts in the country. It would appear that the High Courts of Allahabad, Jammu and Kashmir, Himachal Pradesh and Punjab and Haryana have taken the view that the emergency order of attachment under Sec.146(1) is interlocutory in nature whilst the High Courts of Bombay, Orissa and Rajasthan have tilted for a contrary view. I am inclined to the view that the issue is clinched by way of an analogy by the decision in Mathuralal V/s. Bhanwarlal, AIR 1980 SC 242 : (1980 Cri LJ 1) but there is no gainsaying that even subsequent to the said judgment conflicting views continue to be taken. In a matter somewhat narrowly divided as above, the choice of subscribing to one or the other of the rival opinions has, therefore, necessarily to be a well-considered one.

6. It is plain that the specific question herein is but a limb of the larger yet perennial legal controversy a