PETITIONERS 1 . to C? CR.M.P. NO. 478 OF 2008 Vinay Singh Netam ‘ S / o. Mohitram, Caste Gond, aged about 37 years, r/o. Village Vyasnagar, Police Station 85 Tahsil Pamgarh, District Janjgir—Champa (CG) Shyam Bai Daughter of Late' Parsadi Ram Sidar, Caste Gond, aged about 37 years, R/o. Village Vyasnagar, Police Station and Tahsil Pamgarh, District Janjgir— Champa(CG) 1. RESPONDENTS PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 Versus Rajesh Kumar Singh, S/o. Yashvant Kumar Singh', aged about32 years, R/o. Village Mulmula Police Station 85 Tahsil Pamgarh, District Janjgir—Champa (CG) State of Chhattisgarh, Through Collector, District Janjgir-Champa (CG) Appearance : Shri Suresh Pandey, counsel for the petitioners. None for respondent No. 1, though served. Shri Satish Gupta, Govt. Advocate for the State/respondent No.2. ORAL ORDER (02.03.2009) SUNIL KUMAR SINHA, J. Heard. The petitioners have tiled this petition under Section 482 of the Code of Criminal Procedure for quashing of the order dated 31.07.2008 (Annexure P/ 1) passed by the Second Additional Sessions Judge (FTC) Janjgir (C.G.) in Criminal Revision No. \ \ 128/2007; whereby the learned Revisional Court declined to interfere A /with an order passed by the Executive Magistrate under Section 146 >(1) of the Code of Criminal Procedure relating to the attachment of the property in question. HIGH COURT .OF CHHATTISGARH AT BILASPUR / CR.M.P. NO. 478 OF 2008 ® O The learned Sessions Judge has declined to exercise the revisional jurisdiction on the ground that an order passed under Section 146 (1) of the Code of Criminal Procedure regarding attachment of the property by the concerned Magistrate was an interlocutory order and the revision under Section 397 of the Code of Criminal Procedure was not maintainable in View of the provisions of sub-section (2) of Section 397, Cr.P.C. It appears that on a petition filed under Section 145 of the Code of Criminal Procedure by the respondent No.1, the Sub Divisional Officer, passed a preliminary order and directed for i issuance of notice to the other side and thereafter he further passed an order for attachment of the property in question under Section 146 (1) of the Code of Criminal Procedure. Learned counsel for the petitioners argues that an order passed under Section 146(1) of the Code of Criminal Procedure regarding attachment of the property by the concerned Magistrate, was not an interlocutory order and a revision filed under Section 397 of the Code of Criminal Procedure was maintainable against the said order. In the matter of Keshavgrasad Bhatt Vs. Rameschandral 1990 Cri.L.J. 1541: .a Division Bench of Madhya Pradesh High Court held as follows : An order passed under S.146 (1), Cr.P.C. attaching property and appointing receiver is not an “interlocutory order” within meaning of S.397(2) and revision against same is maintainable. When the Magistrate passes an order under Sec. 146(1) that order deal finally with rights of parties with regard to the subject matter of the dispute in so far as immediate possession thereof is concerned although the order may be of such duration as is statutorily specified. Those who raise or are concerned with the dispute are debarred from dealing with the attached property in any manner; those claiming to be in possession or claiming to have been forcibly dispossessed on the relevant date are evidently affected seriously by that order. As a result of attachment, even for the specified duration, the nature of the property of subject of the disputer undergoes material change as the property custodia legis. The effect of the order extends not only to existing possession of, but also to right of any of parties 1:0 the proceeding under Sec. 145 to possess, the disputed i’ property. In that respect the scope of the order under Sec. 146(1) is Wider and its effect is more pervasive. Because, Sec. 145 expressly debars in the enquiry thereunder any reference to the merits of claims as to rights of any parties to possess the subject of the dispute. N 2 // A~ / v3/ CR.M.P. N0. 478 OF 2008 @ The mere fact that the Magistrate may withdraw at any time the attachment order when there is no longer any likelihood of breach of the peace does not, make the order a “temporary” one and it cannot also be said that it does not affect substantive rights of any parties concerned in the dispute during the period when subject of the dispute remains attached. “Possession” is a substantive right and that right or claim to that right of the parties concerned is substantially affected by that order. And, further, the label “temporary” would be doing Violence to the language of the proviso and of the main enactment and importantly, also, to the object of the Chapter itself. Emergency powers in the very nature of things can and do provide adhoc treatment and tinkering of civil rights of the parties can only be of “temporary” nature. That would not minimize the effect of an order passed to contain emergency situation as infraction would still be there though that may be lost for specified duration. The order negatively settles rights of parties entitled to possession of the subject matter of the dispute by debarring them from interfering with Court’s possession of that on attachment. The unspecified duration of that order 'buttresses rather the severity of the infraction. It will indeed be wrong to presume that duration to be either- long or short as facts of each case would be different. Similarly, it would also be wrong to assume that in every case the Magistrate will exercise the discretion vested in him under the proviso to Sec. 146(1). What is unimpeachable is that the moment he passes the order and attaches the property, the right of parties to possess the same are frozen and remain so “until a competent court has determined the rights,” as a consequence of the order, there will arise occasion to decide many questions which await till such a decision is rendered. The power of revision contemplated under Sec. 397 (1) is curtailed by . sub-section (2) with the object purely of ensuring that pending enquiries, trial and other proceedings do not suffer protraction. Denial of the right of revision against an order passed under Sec. 146(1) would not obviously fulfill that object. There can be no question of proceeding whether under Sec. 145 or under Sec. 146, suffering any delay in disposal on account of the order passed under .Sec.. 146(1). Hence revision against such order is not barred by Section 397(2). I am in complete agreement with the views taken by the Division Bench of Madhya Pradesh High Court and hold that an order passed under Section 146(1) of the Code of Criminal Procedure attaching property and appointing receiver is not an interlocutory order within the meaning of Section 397(2) of the Code of Criminal Procedure. Hence, the revision against the said order would be maintainable. Accordingly, the impugned order passed by the Second .- \vAdditional Sessions Judge (FTC) Janjgir (CG) is set aside. The matter \ CR.M.P. N0. 478 OF 2008 t ( 2x is remitted back to the said Court for deciding the revision afresh after giving due opportunity of hearing to both the parties in accordance With law. . Sdl- Sunil Kumar Sinha Judge I