This judgment sets aside a revisional order setting aside a Magistrate's attachment under Section 146 Cr.P.C. The court directed the Magistrate to decide Section 145 Cr.P.C. proceedings expeditiously.
Revisional order set aside; Magistrate directed to decide Section 145 Cr.P.C. proceedings within six months.
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Court No. - 28
Case :- CRIMINAL MISC. WRIT PETITION No. - 9109 of 2014
Petitioner :- Kanti & 2 Others Respondent :- State Of U.P. & 6 Others Counsel for Petitioner :- Sheo Ram Singh,Juned Alam Counsel for Respondent :- Govt. Advocate,Rajesh Kumar Mall,Shailendra Kumar Rai
Hon'ble Umesh Chandra Tripathi,J.
This criminal misc. writ petition has been filed against the judgment and order dated 25.4.2014 passed by Additional Sessions Judge, Court No. 2, Kushinagar at Padrauna in Criminal Revision No. 119 of 2013 (Brij Bihari and others Vs. State of U.P. and others) whereby revision of revisionist (opposite party nos. 2 to 7) was allowed and order passed by Magistrate dated 26.4.2013 under Section 146 (1) Cr.P.C. was set aside.
It is contended by learned counsel for the petitioners that before passing order under Section 146 (1) Cr.P.C., by Magistrate, it is not necessary to hear both the parties. In case of emergent situation, order may be passed by the Magistrate under Section 146 (1) Cr.P.C., for attachment of disputed property. Proceeding under Section 145 Cr.P.C., for determination of possession of the parties is pending before the Magistrate. Order dated 26.4.2013 passed by the Magistrate is interlocutory order and is not revisable. Even though, learned revisional court passed the impugned order without considering these facts, which is against law and the same is liable to be set aside.
Learned counsel for the opposite party contended that there is no any illegality in the impugned order passed by the learned Sessions Judge. However, he admitted the fact that proceedings under Section 145 Cr.P.C., is pending before the court below.
Learned Sessions Judge allowed the revision only on the ground that in proceeding under 145 Cr.P.C., date was fixed on 9.5.2013 and before that date, learned Magistrate has passed order on 26.4.2013 without
observing the principles of natural justice. Order of attachment passed under Section 146 (1) Cr.P.C., may be withdrawn at any time if the Magistrate is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. Accordingly, learned Sessions Judge should not entertain the revision. Aggrieved party may appear before the Magistrate and make prayer to withdraw the order of attachment on the ground that there is no longer any likelihood of breach of the peace. Finally, right of possession on the disputed property has not been decided by the Magistrate under Section 145 Cr.P.C. In view of this, revision was not maintainable.
Accordingly, the judgment and order dated 25.4.2014 passed by Additional Sessions Judge, Court No. 2, Kushinagar at Padrauna in Criminal Revision No. 119 of 2013 (Brij Bihari and others Vs. State of U.P. and others) is hereby set aside.
Learned Magistrate is directed to decide the proceedings under Section 145 Cr.P.C., expeditiously preferably within a period of six months from the date of production of a certified copy of this order. Parties are directed to appear before Magistrate in proceedings under Sections 145 and 146 Cr.P.C., and adduce their evidence if any. In case, any party has grievance in reference to order of attachment dated 26.4.2013 passed by the Magistrate, may pray before the Magistrate for withdrawal of the order of attachment.
Consequently, this criminal misc. writ petition is allowed .
Order Date :- 17.4.2018 Jaswant
1 issue framed by the court
Whether a high court can quash an interim order of attachment under Section 146 Cr.P.C. passed before the determination of possession under Section 145 Cr.P.C.
2 provisions across 1 enactments
Kanti & 2 Others
State Of U.P. & 6 Others
Umesh Chandra Tripathi
As recorded by the court registry
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