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High Court Of Allahabad
J.C. Gupta, J.
Uma Nath
Vs.
State Of U. P.
Criminal Revision No. 1834 of 20
Decided on: Jul 19, 2001
Jurisdiction - Criminal Procedure Code - Section 145, Section 146 - Summary
Fact of the Case:
The case involved a dispute over agricultural plots, leading to criminal incidents. The police initiated proceedings under Section 145 and Section 146 of the Criminal Procedure Code (Cr. P.C.) to attach the disputed property.
Finding of the Court:
The court found that the Magistrate lacked jurisdiction to initiate proceedings under Section 145, Cr. P.C. as the applicants did not have actual possession of the disputed land, and the dispute did not pose a likelihood of breach of peace.
Issues: The main issue was whether the Magistrate had the jurisdiction to initiate proceedings under Section 145, Cr. P.C. based on the dispute over possession of the agricultural plots.
Ratio Decidendi: The court emphasized that the Magistrate's jurisdiction under Section 145, Cr. P.C. is limited to disputes over actual physical possession of immovable property, and the existence of a likelihood of breach of peace. It clarified that possession in the context of Section 145, Cr. P.C. refers to actual physical possession, not constructive possession or rights to possession.
Final Decision: The court dismissed the revision, affirming the finding that the Magistrate lacked jurisdiction to initiate proceedings under Section 145, Cr. P.C. It also clarified that the dismissal of the revision would not prevent the Magistrate from taking action under Section 107/116, Cr. P.C. if deemed necessary.
J.C. Gupta, J.
1. HEARD Sri Ali Hasan, learned counsel for the applicants in revision.
2. THIS revision is directed against the order dated 15.5.2001 passed by revisional court setting aside the order dated 5.10.2001 made under Section 145 (1), Cr. P.C. and the order dated 17.2.2001 made under Section 146 (1), Cr. P.C. attaching the property in dispute.
The dispute relates to a few agricultural plots whose details are given in the police challani report dated 25.8.2000.
3. PARTIES to the proceedings are inter-related as per the following pedigree : Ram Naresh Ram Nihore Ram Murat (Opp. party No. 2) Uma Nath Kshma Nath Ram Asrey Ram Sahai (Applicant No. 1) (Applicant No. 2) (Opp. party No. 3) (Opp. party No. 4)
4. RAM Naresh was undisputedly the recorded tenure-holder of the disputed plots. After his death, dispute arose between the parties with regard to the holding left by RAM Naresh so much so that the dispute led to some murders and other criminal incidents. On 25.8.2000 police submitted a report before Sub-Divisional Magistrate, Jaunpur, stating that there was a dispute between the parties in relation to the plots in question. After the first party (applicants in revision) succeeded in getting the ex parte order of mutation set aside, which was in favour of opposite parties, a few incidents including murders have occurred. The first party, i.e., applicants are history sheeters and hardened criminals and they could commit any serious crime. Therefore, a prayer was made that proceedings under Section 145, Cr. P.C. be drawn and property attached and given in custody of an independent person.
On 5.10.2000, the Magistrate passed preliminary order under Section 145 (1), Cr. P.C. and thereafter on 17.2.2001 passed order of attachment under Section 146 (1), Cr. P.C. The validity of these orders was challenged by opposite parties in Criminal Revision No. 182 of 2001 before Sessions Judge on the ground of their being without jurisdiction, null and void. The learned Sessions Judge by the impugned order has set aside both the orders of the Magistrate and quashed the proceedings.
5. LEARNED counsel for the applicants in revision in a very emphatic manner submitted before this Court that the revision filed before the Sessions Judge was not maintainable on account of the statutory bar contained in Section 397 (2), Cr. P.C. as both the orders of the Magistrate made under Sections 145 (1) and 146 (1), Cr. P.C. were interlocutory orders, therefore, the order of the Sessions Judge allowing the revision is liable to be set aside.
6. IT is now well-neigh settled that in deciding the question whether an order is interlocutory or not, the sole test is not whether such order was passed during the interim stage of proceeding but the feasible test is whether by upholding the objection raised by a party, would it result in culminating the proceeding. If it has the effect of bringing the proceedings to an end, such an order would not be interlocutory in nature as envisaged in Section 397 (2), Cr. P.C. Vide Amarnath v. State of Haryana, (1977) 4 SCC 137 ; Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 451 ; V. C. Shukla v. State, AIR 1980 SC 962 and K. K. Patel v. State of Gujrat, 2000 (41) ACC 353.
Where an order is wholly without jurisdiction, it is a nullity and non-est with the result that any proceeding drawn subsequent thereto will become void ab initio and if such order is set aside, it has the effect of wiping out the whole proceedings. In relation to such an order, bar of Section 397 (2), Cr. P.C. cannot be applied merely on the ground that the said order was passed at the initial or intermediate stage of the proceedings. It will not be correct to say that bar of Section 397 (2) will apply to all orders excepting the final orders by which proceedings are culminated. The expression 'interlocutory orders' has been used in Section 397 (2), Cr. P.C. in a restricted sense only. To lay down that all orders other than 'final orders' di
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