JUDGMENT Shiv Shanker, J.
1. This writ petition has been filed under Article 226 of the Constitution of India on behalf of the petitioners, Ranjit Singh and others praying to quash the order dated 21.2.2006 passed in Criminal Revision No. 166 of 2004, Smt. Gyatri and Ors. v. Ranjit Singh and Ors., by Additional Sessions Judge, Court No. 3, Banda whereby the revision was allowed and impugned order passed by the court below was set aside. It was further prayed to issue a writ, order or direction in the nature of mandamus commanding the respondent not to release the property in dispute and taking back possession from the Supurdgars..
2. Brief facts, arising out of this case, are that Krishna Gopal Mishra and Mata Prasad were recorded bhumidhar of the plot in dispute No. 1232, area 3 bigha and plot No. 1233, area 4 bigh 17 biswa situated in village Attarra Buzurg, Pargana and Tehsil Alarm, District Banda. Thereafter, a forged power of attorney was got executed. Therefore, it is alleged that a forged power of attorney was got executed in favour of Awadh Kishore allegedly executed by Krishna Gopal Mishra and Mata Prasad. On the ground of forged power of attorney, Krishna Gopal Mishra lodged the F.I.R. under Sections 467, 468, 420, 504 and 506 I.P.C., P.S. Kotwali, District Banda. Holder of the power of attorney Awadh Kishore is the real borther-in-law of Rajesh Kumar, respondent No. 9 and a sale deed was executed by him in favour of Raj Bahadur, Rajendra Kumar, Rajesh Kumar and Vijay Kumar all sons of Ram Pratap. On 17.6.1993 a registered sale deed had been executed by Krishna Gopal Mishra himself in favour of petitioners Ranjit Singh and Raj Karan Mishra, who came in possession over the property in dispute. Therefore, share of Krishna Gopal Mishra firstly was transferred by the holder of the power of attorney and same was again transferred by the owner of the property of Krishna Gopal Mishra. Therefore, the dispute has arisen between both the vendees of the sale deeds. An application dated 13.6.2003 moved on behalf of the petitioners in the court of S.D.M. upon which the report was called from the concerned police station. Similarly, report was also summoned from the Tehsildar at the instance of the respondents and police submitted the chalani under Sections 107/116 and 145 Cr.P.C.. Similarly, Tasildar has also submitted the report with regard to the mutation. It was also stated in the Chalani report. Both parties are the influenced persons and second party Rajendra Kumar Sharma is constructing the shops upon the disputed land with the help of his companions while other party is opposed. They themselves wanted to construct the shop upon the land. Therefore, there is apprehension of breach of peace between both the parties. Parties be summoned by appropriate order in accordance with the law. After satisfying the facts mentioned in the Challani report, the S.D.M. concerned has passed preliminary order under Section 145(1) Cr.P.C. as well as the attachment order under Section 146(1) Cr.P.C.
3. After appearance of the parties in the case, the application on behalf of the respondents was moved which was rejected vide order dated 12.7.2004 by S.D.M.. Feeling aggrieved by it legal representative of Raj Bahadur Sharma, Rajendra Kumar Sharma, Smt. Manju Sharma, Vikas, Vivek filed criminal revision No. 166 of 2004, which was allowed by Additional Sessions Judge vide order dated 21,2,2006 whereby the proceeding was quashed. Similarly the order of attachment and supurdaginama regarding disputed land was also quashed. It was directed that the possession be given to the revisionist upon the disputed land. Thereafter, Ranjit and others filed the present petition.
4. Heard the arguments of learned Counsel for both the parties and perused the record.
5. It is contended on behalf of the petitioners that the impugned judgement and order passed by the revisional court is beyond the scope of revision. It was directed against the order dated 12.7.2004 passed by the Executive Magistrate wherein a finding has been recorded by the Magistrate that the circumstances have not changed. Therefore, the proceedings cannot be dropped but order dated 18.7.2003 regarding issuance of preliminary order and attachment order had not been challenged. It is still intact. Therefore, it does not appeal to any reason how the revisional court has traveled beyond the scope of revision and held that the orders dated 18.7.2003 passed under Section 145(1) and 146(1) Cr.P.C. are liable to be set aside by him whereas those orders were not challenged in the revision.
6. On the other hand, it is submitted that the order of the Magistrate cannot be held without jurisdiction and proceedings under Section 145 Cr.P.C. was not held as maintainable. Therefore, the revisional court has not committed any illegality in passing the impugned judgement and order.
7. It is worthwhile to mention here that Krishna Gopal Mishra and Mata Prasad were recorded bhumidhar of the disputed property wherein both were having equal share. First of all Krishna Gopal Mishra and Mata Prasad allegedly executed power of attorney regarding disputed property in favour of one Awadh Kishore. On the basis of the alleged power of attorney Awadh Kishore, real brother-in-law of Rajesh Kumar, respondent No. 9, had executed the sale deed in favour of Raj Bahadur, Rajendra kumar, Rajesh Kumar arid Vijay Kumar all sons of Ram Pratap. Krishna Gopal Mishra has lodged the F.I.R. against Awadh Kishore. Thereafter, Krishna Gopal Mishra had executed sale deed in favour of Ranjit Singh and Raj Karan Mishra regarding the same property. Due to construction of the shops over the disputed property, a dispute arose between both the parties. Consequently, Challani report under Section 145 Cr.P.C. was filed in the court of S.D.M..
8. Section 145(1) Cr.P.C., provides as under:
Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parities concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
9. Accordingly, the Executive Magistrate passed the preliminary order under Section 145(1) Cr.P.C. on 18.7.2003.
10. It has also been provided under Section 146 Cr.P.C. that-:
If the Magistrate at any time after making the order under Sub-section (1) of Section 145 considers the case to be one of emergency, or if he ...may attach the subject of dispute...
11. Therefore, the attachment order in case of emergency was also passed by the Executive Magistrate on the same day after passing the preliminary order. Thereafter, present opposite parties appeared in the case and moved an application stating that the preliminary order and attachment order cannot be passed at the same time in absence of the appearance of the parties. In this regard, it is very significant to note that preliminary order under Section 145(1) Cr.P.C. and attachment order under Section 146(1) Cr.P.C. have been passed by the Executive Magistrate on the same day, after appearance of the opposite parties, therefore, they had a right to file their written statement for contesting the case and same was to be decided on the merits of the case after taking the evidence of both the parties under Section 145(4) Cr.P.C. when the preliminary order and attachment order have been passed by the Executive Magistrate. In such circumstances, the opposite parties had a right to prefer the criminal revision under Section 397 Cr.P.C. wherein the orders of preliminary order and attachment order could be challenged. However, the opposite parties did not prefer the criminal revision. During the course of proceedings, opposite parties and others moved an application on the ground that both the orders cannot be passed at the same time. Therefore, attachment order is illegal and proceeding should be dropped. It is worthwhile to mention here that once the preliminary order under Section 145(1) Cr.P.C. was passed then case had to be decided on merits according to under Section 145(4) Cr.P.C. before deciding the case on merits. The case may be dropped on the basis of Section 145(5) Cr.P.C. which runs as follows:
Nothing in this section shall preclude any party so required to attend or any other person interested, from showing that no such dispute as aforesaid exists others existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall he final.
12. No application was moved on behalf of the opposite parties before the Executive Authority to drop the proceeding under Section 145(5) Cr.P.C.. The so called application was moved on behalf of the opposite parties to quash the attachment order as preliminary order and attachment order could not be passed on one occasion.
13. It is also worthwhile to mention here that the Executive Magistrate has passed the order by rejecting the application of opposite parties that the circumstances has not changed. Therefore, opposite parties challenged the order of the Executive Magistrate by filing the criminal revision meaning thereby the order dated 12.7.2004 was challenged. In such circumstances, the scope of revisional court was very limited. He has to pass the order in respect of the impugned order passed by the Executive Magistrate. The revisional court has no jurisdiction to reverse the finding after re-assessment of the evidence or give the new finding but in the present case the revisional court has not set aside the order dated 12.7.2004 against which the criminal revision was filed. He quashed the whole proceedings including the attachment order and directed to release the attached property in favour of the opposite parties. Therefore, revisional court has exceeded in exercise of the jurisdiction. The revisional court has held that there was no justification to pass the preliminary order and attachment order. In ease of emergency, an order of the attachment can only be passed after passing preliminary order under Section 145(1) Cr.P.C. meaning thereby after passing the preliminary order, the attachment order, in case of emergency, may also be passed on the same day. In any case, firstly the attachment order in case of emergency cannot be passed without passing firstly the preliminary order. Therefore, revisional court has not considered the judiciously in giving finding that there was no necessity to pass the both orders. The revisional court was to be considered that on what grounds the attachment order was passed on same day. It had been provided in the proviso to Section 146 Cr.P.C. that:
Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
14. For this purpose no application on behalf of the opposite parties was moved before the Executive Magistrate in the proceedings. In such circumstances, the order passed by the revisional court seems to be arbitrary and it will be justified to remand the matter to the revisional court to decide afresh.
15. There is no need for considering any point advanced on behalf of both the parties.
16. In view of the discussions made above, the writ petition is hereby allowed and impugned judgement and order passed by the revisional court is hereby quashed and this matter is remanded back to the revisional court for deciding afresh on the basis of direction given on the body of this judgement. Both the parties are directed to appear before the revisional court on 17.7.2006 who will decide the revision expeditiously.