JUDGMENT R.K. Rastogi, J.
1. This is a revision against the judgment and order dated 7.2.2001 passed by Sri Brahma Singh, then learned Sessions Judge, Kushinagar in Criminal Revision Nos. 188 of 2000, Smt. Lakhrani v. State of U.P. and Anr.
2. The facts relevant for disposal of this revision are that on 27.9.2000 Maan Babu Dubey moved an application before the Station Officer of Police Station Kuber Nath district Kushinagar with these allegations that he is adopted son of late Laxmi Dubey and a registered deed of adoption was also executed and he inherited entire property of Laxmi Dubey after his death. His Pattidar Aniruddh Dubey was not happy with the above adoption, and had been committing atrocities upon him. He had sown crop of paddy and sugarcane in his plots No. 280 and 27. Aniruddh Dubey and his colleagues Tahir and Majeed were planning to harvest the crop and threatening to kill him. It was, therefore, prayed that suitable action should be taken against them. The Station Officer of Police Station Kuber Nath marked that application to Sri Banarasi Yadav Sub Inspector for investigation and after receipt of report of the Sub Inspector Sri Umashanker Tiwari submitted a report before the Sub Divisional Magistrate Kasia district Kushinagar in which he stated that crops of paddy and sugarcane had been sown in the aforesaid two plots and both Maan Babu Dubey and Smt. Lakhrani widow of late Laxmi Dubey are claiming it to be their own property. Maan Babu Dubey claimed himself to be adopted son of Laxmi Dubey and Smt. Lakhrani claimed herself to be widow of Laxmi Dubey and there was tension between both the parties and so it was prayed that action should be taken under Sections 145 and 146 Cr.P.C.
3. On the above report, the learned Magistrate passed a preliminary order under Section 145 Cr.P.C. on 5.10.2000 mentioning therein that there was likelihood of breach of peace and he directed both Maan Babu Dubey and Smt. Lakhrani to appear in his court on 16.10.2000 and to produce their written statement in respect of their claim to the disputed crop. He also ordered on 6.11.2000 under Section 146 Cr.P.C. for attachment of the crops standing on the aforesaid plots. Aggrieved with that order Smt. Lakhrani filed Criminal Revision No. 188 of 2000 before the Sessions Judge, Kushinagar. The above revision was heard and and decided by Sri Brahma Singh, then learned Sessions Judge, Kushinagar vide his judgment dated 7.2.2001. He held therein that since civil suit was pending between the parties, there was no justification for drawing the proceedings under Section 145 Cr.P.C. He, therefore, allowed the revision and set aside the impugned order passed by the learned Magistrate. Aggrieved with that order Maan Babu Dubey filed this revision before this Court.
4. Notice of this revision was issued to the State of U.P. O.P. No. 1 as well as to Smt. Lakhrani O.P. No. 2. Smt. Lakhrani put in appearance through Sri K.D. Tiwari, Advocate, but none appeared on her behalf at the time of hearing of arguments in this revision. Hence, the arguments of the learned Counsel for the revisionist and of the learned A.G.A. on behalf of the State were heard and record of the case was perused and now I am deciding this revision on merits.
5. The learned Counsel for the revisionist first of all submitted before me that preliminary orders passed under Sections 145(1) and 146(1) Cr.P.C. are interlocutory orders and so revision against those orders is not maintainable, and the learned Sessions Judge committed jurisdictional error by entertaining the revision and allowing the same. In support of this contention he cited before me a ruling of this Court in 'Kallo and Ors. v. State of U.P. and Ors.' -1997(35) ACC 206. In this case also the Magistrate had passed preliminary orders under Sections 145(1) and 146(1) Cr.P.C. and against those orders a revision was filed before the Sessions Judge. The Sessions Judge partly allowed the revision and set aside the attachment of part of the property. That order was challenged before this Court on the ground that the orders under Sections 145(1) and 146(1) Cr.P.C. being interlocutory are not revisable and so revision was incompetent. Hon'ble D.C. Srivastava, J. who heard and decided this revision held that the orders passed under Sections 145(1) and Section 146(1) Cr.P.C. are interlocutory orders and a revision against those orders was not maintainable. He relied upon following rulings in support of his above view:
(1) Amarnath Chawla v. State of Haryana ;
(2) Madhu Limaye v. State of Maharashtra 1978(15) ACC 184(SC);
(3) Indradeo Pandey v. Smt. Bhagwati Devi 1981(18) ACC 16;
(4) Jai Prakash Singh and Anr. v. Radhey Shyam Singh and Ors. 1987 (24) ACC 464 (SC) (5) Jagannath Singh Chauhan v. Smt. Shakuntala Singh 1990 AWC 119;
(6) Vijai Singh v. IADJ Saharanpur 1991(28) ACC 99;
(7) Bhrigunath v. Parmeshwar and Anr. 1996(33) ACC 426.
6. The learned Counsel for the opposite party has also cited following rulings before his Lordship in support of his contention that revision was maintainable:
(1) Ram Sumer Puri Mahant v. State of U.P. ;
(2) Ranjeet Singh v. Moti Lal Katiyar 1988 (25) ACC 26;
(3) Shah v. XII Addl. District Judge, Meerut 1994 JIG 744;
(4) S. Singh v. District & Sessions Judge, Kanpur 1996 JIC 1000;
7. All these rulings were considered by his lordship and were distinguished. It was pointed out in his judgment that in the case of Ram Sumer Puri Mahant v. State of U.P. (supra) Hon'ble Apex Court had not considered the question of maintainability of the revision against interlocutory order passed under Sections 145 and 146 Cr.P.C. Regarding the ruling in Ranjeet Singh v. Moti Lal Katiyar (supra) it was pointed out that in this case proceedings under Sections 145(1) and 146(1) Cr.P.C. were not quashed in revision but in a petition under Section 482 Cr.P.C. and so it could not be held on the basis of this ruling that revision against a preliminary order passed under Sections 145 and 146 Cr.P.C. was maintainable. Regarding the ruling in the case of Shah v. XII Addl. District Judge, Meerut (supra) it was pointed out that in this case the Magistrate had earlier passed one A order and thereafter on same facts he passed a totally different order, and under these circumstances the Court set aside the subsequent order passed by the Magistrate holding it to be an abuse of the process of the court and no general proposition of law was laid down in this Riling that every order under Section 146 Cr.P.C. is revisable. Regarding the ruling in S. Singh v. District and Sessions Judge, Kanpur (supra) it was pointed out that it was not a case of revision, but it was a writ petition and the question of maintainability of the revision against the preliminary orders passed under Sections 145 and 146 Cr.P.C. was not considered in this case also. In this way his lordship referring to the case law on the point, finally concluded that there is consensus of opinion of this Court that the orders passed under Sections 145 and 146 Cr.P.C. are as interlocutory orders, and hence, no revision is maintainable against these order.
8. The position in this way is that the orders passed by the Magistrate under Sections 145(1) and 146(1) Cr.P.C. are interlocutory orders and no revision is maintainable against the said orders. It may be mentioned that it appears from perusal of the record that a civil suit was also pending between the parties in respect of the same property and so the proceedings under Sections 145 Cr.P.C. ,vcre not maintainable. I am of the view that when the preliminary order passed under Sections 145(1) and 146(1) Cr.P.C. is interlocutory order, no revision against the said order is maintainable, arid the proper course (of the aggrieved party is to file his objection before the S.D.M. mentioning therein the fact of pendency of the civil litigation and that aspect of the case is to be considered at first by the learned Sub Divisional Magistrate, and the party aggrieved with the order thereon may go in revision.
9. The present revision, therefore, deserves to be allowed and the order passed by the learned Sessions Judge, Kushinagar is liable to be set aside and order passed by the Magistrate deserves to be restored.
10. The revision is allowed. The order passed by the learned Sessions Judge, Kushinagar is set aside and that of the learned Sub Divisional Magistrate Kasia, Kushinagar is restored.