Legal procedure under Section 145 Cr.P.C. must be strictly followed; failure leads to dismissal of applications.

Hon'ble Pankaj Purohit, J.

This application preferred under Section 482 Cr.P.C. is directed against the judgment and order dated 16.08.2023 passed by learned Sessions Judge, Uttarkashi in Criminal Revision No.17 of 2019, Gulbiya vs. Manoj alias Manoj Kumar & another. By the said judgment and order dated 16.08.2023, learned Sessions Judge quashed the order dated 16.09.2019 passed by Sub-Divisional Magistrate, Uttarkashi, whereby the application of the present applicant under Section 145 (1) Cr.P.C. was disposed of and the land in-question was attached.

2. Facts in nutshell are that an application under Section 145 Cr.P.C. was filed by the applicant against the respondent no.2 stating therein that on the subject land, the applicant was recorded as tenure holder who got the said land after the death of his maternal grandfather. The respondent no.2 wanted to mutate his name over the said piece of land on the strength of a forged Will, the said case filed by the applicant against respondent no.2 was dismissed by Tehsildar, Mori on 05.12.2015. The appeal where- against was filed which is pending consideration. It was also stated that respondent no.2 has an orchard of apples over the aforesaid land and the tree are laden with fruits, while the applicant wants to take possession over the said land. It was also stated that respondent no.2 was keen to take possession over the land and to damge the fruits which may result in violtation of law, order and peace. Hence, the prayer was made to direct the Tehsildar Mori to attach the subject property. On the said application, by order dated 20.07.2017 orders for attachment were passed. The respondent no.2 filed his written statement wherein he stated that proceedings under Section 145 Cr.P.C. were not maintainable and no action under Section 146 Cr.P.C. can be initiated.

3. It needs to be mentioned at this stage that as against the order dated 20.07.2017, a revision was preferred being Criminal Revision No.23 of 2017, Gulabiya vs. Manoj Kumar & others and the revisional court by judgment dated 03.05.2018 allowed the revision and set-aside the order dated 20.07.2017, whereby the property was directed to be attached.

4. Learned Sub-Divisional Magistrate, Purola (Uttarkashi) by its order dated 16.09.2019 affirmed the preliminary order passed under Section 145 (1) Cr.P.C. It was also directed that the parties have failed to prove their respective possession either by way of oral or documentary evidence or any other independent witness. Accordingly, the property was directed to be attached. Against that order, again a revision was carried before the Sessions Judge, Uttarkashi by respondent no.2 herein. Learned Sessions Judge by way of judgment dated 16.08.2023 has allowed the revision, set-aside the impugned order dated 16.09.2019 passed by trial court. Challenging the said order, applicant has come up before this Court.

5. I have heard learned counsel for the parties and carefully perused the evidence on record. The revisional court while passing the impugned order has held out that the record of the trial court showed that while passing the impugned order no preliminary order was passed as required under Section 145 (1) Cr.P.C. in light of the order passed by revisional court in Criminal Revision No.23 of 2017 nor did any opportunity to adduce the evidence under Section 145 Cr.P.C. was given to the parties. Not only this on the date of passing of impugned order, a preliminary order dated 20.07.2017 had already been quashed and thus, no such order was existing on that date. The revisional court accordingly reached to the conclusion that the trial court did not follow the procedure as prescribed under Section 145 Cr.P.C. and accordingly, it set-aside the impugned order.

6. I have perused the order passed by revisio