IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO. 884 OF 2001 (Old no. 665 of 1995) Baleshwar and another ……… Revisionists Versus State and 11 others. .……….Respondents Dated: October 14 , 2008 Sri S.K. Posti, learned counsel for the revisionists, Sri M.A. Khan, learned Brief Holder for the State. Sr. K.S. Bora, learned counsel for the respondent-12/1 Sri Bhupendra Singh, holding brief of Sri. S.S. Chauhan for respondent nos. 2 to 6. None for the respondent nos. 7 to 11. HON. DHARAM VEER, J. This criminal revision preferred under section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 22.02.1995 passed by IInd Addl. Sessions Judge, Nainital passed in Criminal Revision no. 21 of 1993, by which the revision titled as Sri Lal Chandra and others vs. Sri Ram Sakal and others was allowed and the order dated 30.11.1992 passed by the Sub Divisional Magistrate, Khatima in Crl. Case no. 11/4 of 1990 Lal Chand and others vs. Ram Sakal and others was set- aside and the matter was remanded back to the Sub Divisional Magistrate, Khatima with the direction to pass fresh order u/s 146 Cr.P.C. as per law after affording opportunity of hearing to both the parties. 2. None is present for the respondent nos. 7 to 11. Heard Sri S.K. Posti, learned counsel for the revisionist, Sri M.A. Khan, learned Brief Holder for the State, Sri K.S. Bora, learned counsel for the respondent-12/1, Sri Bhupendra Singh, holding brief of Sri. S.S. Chauhan, learned counsl for respondent nos. 2 to 6 and perused the record. 2 3. In brief the facts of the case are that proceedings of the Crl. Case no. 11/4 of 1990 was initiated before the Sub Divisional Magistrate, Khatima. The Police Station-Sitarganj submitted its report that there was apprehension of breach of peach between two parties (1) Lal Chand and others and (2) Ram Sakal and others in regard to the land inside the Bangul Dam situated At village Loka P.S. Sitraganj. It reveals from the record that in view of the order of the Govt. issued in the year 1973, the said land was not used for the purpose of Dam and therefore, the land which was not under water was distributed amongst landless people and both the parties were claiming their possession over the land in dispute. On the apprehension of breach of peace a notice u/s 145 Cr.P.C. was issued on 18.04.1990 by the Sub Divisional Magistrate, Khatima. On the objections raised by the opposite parties, the Sub Divisional Magistrate again called police report from P.S. Sitarganj. After hearing learned counsel for both the parties, the Sub Divisional Magistrate, Khatima on 30.11.1992 passed order for maintaining status-quo in regard to the property in dispute. It is also held that so far the ownership is concerned, the parties can proceed further for declaration of their title from a competent Court. Being aggrieved with this order, the respondents Lal Chand and others preferred a revision before the District and Sessions Judge, Nainital, which was lateron transferred to the Court of IInd Addl. Sessions Judge, Nainital and the Learned IInd Addl. Sessions Judge, Nainital vide his impugned judgment and order dated 22.02.1995 has held that the Sub Divisional Magistrate has got no right to pass injunction order, and while passing such order u/s 146(1) Cr.P.C. both of the parties would have provided opportunity of hearing and to led their evidence as provided u/s 146 (1) Cr.P.C. as to which party have possession on the land in dispute. The Revisional Court has further held that the Sub Divisional Magistrate should have passed order on the basis of procedure laid down u/s 146 (1) Cr.P.C. Section 146 Cr.P.C. is reproduced hereunder:- 3 146:- Power to attach subject of dispute and to appoint receiver:- (1) 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 decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof; 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. (2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the code of Civil Procedure, 1908 (5 of 1908): Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate- (a) Shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him; (b) May make such other incidental or consequential orders as may be just. 4. The learned IInd Addl. Sessions Judge set-aside the order dated 30.11.1992 passed by the Sub Divisional Magistrate on the ground that the Magistrate could not pass injunction order u/s 4 146 Cr.P.C. and he could only pass order of attachment and secondly; it is held that while passing order u/s 146 (1) Cr.P.C. it is mandatory to the Sub Divisional Magistrate to provide proper opportunity to both the parties to produce their evidence in regard to the possession over the land in question as to which party has possession over the land in dispute and after assessing the evidence, the Sub Divisional Magistrate, if wanted, can attach the land in dispute and make inquiry continuously. It is also held that the Sub Divisional Magistrate failed to do so and he passed the injunction order to maintain status-quo, thereby the Sub Divisional Magistrate, Khatima has misused his jurisdiction. On the basis of these findings the learned IInd Addl. Sessions Judge has remanded the matter back to the Sub Divisional Magistrate, Khatima with the direction that the Sub Divisional Magistrate may pass order u/s 146 Cr.P.C. after giving reasonable opportunity of hearing to both the parties. 5. Sri M.A. Khan, Brief Holder for the State has argued that the dispute relates to the year 1990 and more than 17 years have been passed, now there is no danger of breach of peace and the revision has become infructuous by lapse of time and on this very ground the revision is liable to be dismissed. Thus, keeping in view the facts and circumstances of the case and as above 17 years have been passed when the matter was initiated and no such documentary evidence is available on the record that breach of peace is still exists there in regard to the property in dispute thus, on this very ground the instant revision is liable to be dismissed. 6. Consequently, this Court is of the view that the learned IInd Addl. Sessions Judge has not committed any manifest error of law in passing the impugned order dated 22.02.1995 and has rightly remanded the matter back to the Sub Divisional Magistrate concerned and also directed him to decide the case 5 afresh as laid down u/s 146 Cr.P.C., after providing reasonable opportunity of hearing to both the parties. Thus, as provided u/s 146 (1) Cr.P.C. 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 decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. Consequent upon, it is observed that the Sub Divisional Magistrate, did not follow the procedure laid down u/s 146(1) Cr.P.C. while passing the injunction order to maintain status-quo, thus, the Revisional Court has rightly passed the impugned order, which does not warrant interference by this Court. I do not find any illegality, impropriety or incorrectness in the impugned order dated 22.02.1995 passed by the IInd Addl. Sessions Judge, Nainital. Even otherwise by passing the impugned order, the right of the revisionist is not adversely affected. The revision is devoid of merits and is liable to be dismissed. 7. Accordingly, the revision is dismissed. However the trial court/Sub Divisional Magistrate, Khatima is free to proceed in the matter as per law and on the basis of the conditions and situation prevailing on the spot. 8. Interim order dated 25.05.1995 passed by this Court stands vacated. (Dharam Veer, J.) 14.10.2008 NCM