Court No. - 50

Case :- MATTERS UNDER ARTICLE 227 No. - 7928 of 2022

Petitioner :- Jage Ram Bhati

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Kamlesh Kumar Dwivedi

Counsel for Respondent :- G.A.,Dharmendra Dhar Dubey

Hon'ble Ram Manohar Narayan Mishra,J.

Heard learned counsel for the petitioner and Sri Dharmendra

Dhar Dubey, learned counsel for the respondent and Sri R.P.

Pandey assisted by Manoj Mishra, learned AGA for the State.

Present petition under Article 227 of the Constitution of India is

filed by the petitioner against the impugned order dated

30.8.2022 passed by learned Additional Sessions Judge, court

no. 2, Ghaziabad in Application 30-kh dated 17.8.2022 filed by

the petitioner in Criminal Revision no. 387 of 2022 (Raj Bhati

vs. Jage Ram Bhati and another) under Section 146(1) Cr.P.C.,

P.S. Loni Border, District Ghaziabad. By the impugned order

learned Additional Sessions Judge has rejected the application

30-kh moved by opposite party no. 1, who is petitioner before

this Court, in application 30-kh and opposite party before the

Revisional court had challenged the maintainability of revision

preferred against the impugned order dated 20.7.2022 passed by

learned Magistrate under Section 146 Cr.P.C., while rejecting

the application 30-kh learned Revisional court has observed that

question of maintainability of revision would be decided with

the revision petition. Feeling aggrieved by the impugned order

passed by Revisional court present petition is filed wherein

main ground has been taken that the impugned order is illegal

and contrary to the law, as question of maintainability of

revision may not be decided at the time of disposal of revision

and Revisional court is bound to decide the same at the

preliminary stage.

In application 30-kh, applicant, who is petitioner before this

court, has stated that impugned order passed by learned

Executive Magistrate on 20.7.2022 in the case under Section

146 Cr.P.C. was an interlocutory order against which revision is

not maintainable.

Learned counsel for the petitioner submits that learned

Executive Magistrate has passed the order under Section 145

Cr.P.C. on 24.11.2020 in which a finding was recorded that

there was sufficient ground to proceed in the case under Section

145 Cr.P.C. where dispute of a house lying in an agricultural

plot was involved between the parties and the parties were

directed to appear before the court alongwith their respective

evidence/ clarification. Subsequently, case u/s 145 Cr.P.C. was

decided vide order dated 20.7.2022 under Section 146(1)

Cr.P.C. wherein learned Magistrate has passed an order for

attachment of the disputed property in exercise of power vested

to him u/s 146(1) Cr.P.C. and SHO, concerned, was directed to

appoint a receiver, who will take the property in his custody and

keep it under attachment until any party moves regarding

ownership or possession with respect to property in question.

Learned counsel for the petitioner cited Full Bench judgement

of this Court in the case of Munna Singh @ Shivaji Singh and

others vs. State of U.P. and another, reported in 2011 (3)

JIC 628 (All) (FB) as well as subsequent judgement of Single

Bench of this Court in the case of Indramohan Gautam vs.

State of U.P. and others reported in (2018) 1 ADJ 550.

Per contra, learned counsel for the respondents submits that

petition is misconceived and as per law of this Court in the said

Full Bench decision, impugned order against which revision is

filed by the respondent before the court of Session Judge,

cannot be held as an interlocutory order and revision is

maintainable against the impugned order passed under Section

146(1) Cr.P.C. Learned counsel has cited judgement of Hon'ble

Apex court in Ashok Kumar vs. State of Uttrakhand and

others decided in Criminal Appeal No. 2038 of 2012 arising

out of SLP No. 3932 of 20212.

I have gone through the various judgements