Back
High Court of Kerala
P. UBAID, J.
N.A. Shameel & Another
Versus
Muhammed Ansari & Others
Crl. Rev. Pet. No. 152 of 2014
Decided on: 26-08-2014
Criminal Procedure Code, 1973 - Sections 145(4), 145(6), 146(1) & 397 - Revisional jurisdiction - Interlocutory order - Breach of peace - Enquiry of - Findings of - Held, Court find that the impugned order in this case was made by the Executive Magistrate in a special circumstance where he found it difficult to decide who among the parties was in actual possession on the relevant date - Court find that it is only an interlocutory order not amenable to revisional jurisdiction under S.397 of Cr.P.C - Executive Magistrate shall peruse the statements put in by the parties, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and if possible, decide whether any of the parties was, on the date of the order made by him under sub-s.(1), in possession of the subject of dispute - Executive Magistrate finds the possibility of breach of peace, and the parties made appearance before him as required u/S.145(1) of Cr.P.C. with claim and rival claim, the Executive Magistrate will definitely have to conduct an enquiry, and as part of this enquiry, he will have to record evidence, peruse the claim statements made by both the parties, and he will have to decide, only if possible, who among the parties was in fact in possession on the relevant date
1. The question of law involved in this revision is whether an order of attachment passed by the Executive Magistrate under Section 146(1) of the Code of Criminal Procedure (for short 'Cr.P.C') is amenable to revisional jurisdiction under Section 397 of Cr.P.C. The property in dispute, and under attachment, is a two storied building. The dispute actually is between two factions within the same religion, or between two groups within a society. On the basis of the report submitted by the Sub Inspector of Police, Kottayam West Police Station, the Sub Divisional Magistrate, Kottayam, in his capacity as Executive Magistrate proceeded under Section 145 of Cr.P.C on the finding that there is possibility of breach of peace in view of dispute between the two factions concerning possession over the said building. On prima facie satisfaction of such a possibility, the Executive Magistrate, without and before proceeding to pass preliminary order and notice under Section 145(1) of Cr.P.C initiated conciliatory efforts. Accordingly on 22.7.2013, the Executive Magistrate issued notice to both the parties to appear on 29.7.2013. In fact, the police happened to submit such a report about apprehended breach of peace on the complaint made by the 1st respondent herein, claiming to be the Secretary of the Adhoc Committee of Kerala Nadavathul Mujahideen. The said complaint was made on 25.6.2013. Finding that conciliatory efforts may not yield result, the Executive Magistrate directed the police on 30.7.2013 to take necessary precautions to prevent the apprehended breach of peace, and he called for report from the Revenue Tahsildar. On 23.8.2013, the Tahsildar submitted report that the dispute between the two factions still continues, and that it would be safe and proper to maintain the status quo. The status quo meant by the Tahsildar is the state of affairs consequent to the directions made by the police to the revision petitioners to close down the office functioning in the disputed building. The matter proceeded further, and on 7.10.2013, the Executive Magistrate passed preliminary order and notice under Section 145(1) of Cr.P.C, requiring both the parties to appear before him on 18.10.2013 in person or with lawyers, for necessary enquiry into the dispute. As required in the notice, published and served under Section 145(3) of Cr.P.C, both the parties appeared before the Executive Magistrate and filed statements containing the respective claims.
2. Pending the proceedings, the Executive Magistrate passed another order on 17.1.2014 under Section 146 of Cr.P.C attaching the property in dispute on the finding that it is not possible to decide on the basis of the materials furnished by the parties, as to who was in fact in possession of the building on the relevant date. The said order of attachment passed by the Sub Divisional Magistrate under Section 146(1) of Cr.P.C is under challenge in this revision.
3. The learned counsel for the respondents, and also the learned Public Prosecutor representing the State, made a preliminary objection that this revision is not maintainable, or that order of attachment passed under Section 146(1) of Cr.P.C is not amenable to revisional jurisdiction under Section 397 Cr.P.C for the reason that it is only an interlocutory order as meant under Section 397(2) of Cr.P.C. This preliminary objection was heard in detail.
4. The learned counsel for the revision petitioner submitted that the impugned order cannot be said to be an interlocutory order in view of the decision of the Hon'ble Supreme Court in Rajendra Kumar Sitaram Pande and Others v. Uttam and Another [1999 (3) SCC 134]. In the said decision, the Hon'ble Supreme Court held that even an order of the Magistrate directing issuance of process cannot be said to be an interlocutory order. Answer to the question of law is contained in paragraph 6 of the judgment of the Hon'ble Supreme Court, that interlocutory order means or denotes orders of purely interim or
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
