Back
HIGH COURT OF ALLAHABAD
C.S.P. Singh and B.N. Sapru JJ.
Sohan Lal Burman
Versus
State of Uttar Pradesh
Decided On : 14 March 1977
CRIMINAL PROCEDURE CODE - SECTIONS 145, 146 - REVISION - ORDER UNDER SECTION 145(1) AND ATTACHMENT ORDER UNDER SECTION 146(1) - REVISABLE - NOT INTERLOCUTORY ORDERS.
Fact of the Case:
The petitioner challenged an order under Section 145 Cr. P. C. and an attachment order under Section 146(1) of the same code. The respondent raised a preliminary objection that the petition abated in view of Section 58 of the Constitution 42nd (Amendment) Act, 1976.
Finding of the Court:
The court held that the orders passed under Sections 145(1) and 146(1) being that of inferior criminal court situate within the jurisdiction of the Sessions Judge and this Court are, on the plain meaning of Section 397(1) revisable. The court further held that an order attaching the property under Section 146(1) terminates the proceedings under Section 145 before the Executive Magistrate save for the limited purpose of withdrawing the attachment in cases where the apprehension of breach of peace ceases to exist.
Issues: Whether the orders passed under Sections 145(1) and 146(1) are revisable under Section 397 of the Cr. P. C.
Ratio Decidendi: The court held that the orders passed under Sections 145(1) and 146(1) are revisable under Section 397 of the Cr. P. C. because they are not interlocutory orders. An interlocutory order is one that does not finally dispose of the rights of the parties or leave that to be determined in the ordinary way. The orders passed under Sections 145(1) and 146(1) finally dispose of the rights of the parties to possession of the attached property, as the proceedings before the Executive Magistrate come to an end after the attachment order is passed.
Final Decision: The court dismissed the petition as it abated in view of Section 58 of the Constitution 42nd (Amendment) Act, 1976. The court also discharged the stay order and held that it is open to the petitioner to challenge the orders by way of a revision as provided for in the Code.
( 2 ) SECTION 58 (1) of the Constitution 42nd (Amendment) Act provides that pending petitions and interim orders made thereon should be dealt with in accordance with the Provisions of Article 226 as substituted by Section 38 of the Amending Act. Sub-section (2) provides that petitions which would not have been admitted by the High Court under the provisions of Article 226 as substituted by Section 38 aforesaid, shall abate and any interim order made thereon shall stand vacated. Article 226 (3) of the Constitution as now stands, bars a petition for redress of any injury referred to in Sub-clause (b) and (c) of Clause (1) of Article 226, if any other remedy for such redress is provided by or under any other law. Respondents counsels contention is that the orders passed by the Executive Magistrate are revisable Under Section 397 of the Cri. P. C.
( 3 ) RELEVANT part of Section 397 (1) and (2) Cr. P. C. runs as under : 397. Calling for records to exercise powers of revision. The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.--All Magistrates, whether Executive or judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of Section 398. (2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
( 4 ) BOTH the orders passed Under Sections 145 (1) and 146 (1) being that of inferior criminal court situate within the jurisdiction of the Sessions Judge and this Court are, on the plain meaning of Section 397 (1) revisable. It has, however, been urged that the order passed Under Section 145 (1) and the attachment order Under Section 146 (1) are interlocutory orders and, as such, no re revision lies in view of Sub-clause (2) of Section 397. In order to consider this contention it is necessary to refer to Section 146 (1) of the Code which may be conveniently extracted at this stage. 146. Power to attach subject of dispute and to appoint receiver-- (1) If the Magistrate at any time after making the order under Sub-section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to In Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof : Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
( 5 ) A perusal of this provision leads plainly to the result that on any of the three contingencies existing, viz. (1) in cases of emergency ; (2) when the Magistrate reaches the decision that none of the parties is in possession ; and (3) when he is unable to
satisfy himself as to whi
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
