IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr.M.P. No.548 of 2008
Rupesh Chandra Agarwal -- -- -- -- --- -- --Petitioner
Versus
1. Naresh Chandra Agarwal
2. The State of Bihar
3. Anand Prakash Sharma
4. Om Prakash Sharma
5. The State of Jharkahnd-- -- -- -- -- -- -- -- --Opposite Parties
CORAM : THE HON'BLE MR.JUSTICE D.K. SINHA
For the Petitioner : Mr. Jai Prakash, Sr. Advocate
M/s. Yogesh Modi & Chaitali C. Sinha, Advocates
For the Opp. Parties: Mr. K.P. Choudhary, Advocate &
Mr. B.B. Sinha, A.P.P.
-----
Reserved on: 3-5-2011 Pronounced on: 04 - 07-2011
D.K. Sinha, J. Petitioner has invoked the inherent jurisdiction of this Court for
quashment of the order dated 7.3.2008, passed by the 1st Additional
Sessions Judge, Hazaribagh in Criminal Revision No.126 of 2007, by
which the order recorded by the Sub Divisional Magistrate, Hazaribagh on
29.6.2007
in a proceeding under Section 145 of the Code of Criminal
Procedure was set aside and the petition, filed on behalf of the opposite
party No. 1, who was not the party to the proceeding was allowed wherein
request was made for dropping of the said proceeding and the revisional
court further directed for the release of the properties in dispute, if
attached under Section 146(1) of the Code of Criminal Procedure.
2. The short facts of the proceeding were that on the petition of
the petitioner, a proceeding was initiated under Section 144 of the Code of
Criminal Procedure against the opposite party Nos. 3 and 4 being the 2 nd
party, which was later on converted into the proceeding under Section 145
of the Code of Criminal Procedure by the Sub Divisional Magistrate. The
opposite party Nos. 3 and 4 herein, being the 2nd party of the proceeding,
preferred Criminal Revision No.160 of 2005 against the order dated
16.9.2005, by which proceeding was converted into one under Section
145 of the Code of Criminal Procedure. The learned Sessions Judge,
Hazaribagh in terms of order dated 16.9.2005 dismissed the aforesaid
revision application filed by the opposite party Nos. 3 and 4 herein. Then
the 2nd party of the proceeding i.e. opposite party Nos. 3 and 4 filed a
petition before the Sub Divisional Magistrate, Hazaribagh on 10.4.2007 to
drop the said proceeding under Section 145 of the Code of Criminal
Procedure. The learned Sub Divisional Magistrate, Hazaribagh in
terms of the order dated 29.6.2007 dismissed the application of the
opposite party Nos. 3 and 4 dated 10.4.2007. The opposite party Nos. 3
and 4, who were the 2nd party in the proceeding, did not challenge the
order dated 29.6.2007, passed by the Sub Divisional Magistrate,
Hazaribagh, by which their petition dated 10.4.2007 was rejected. Yet,
surprisingly enough, the order dated 29.6.2007 was challenged by a
stranger Naresh Chandra Agarwal i.e. opposite party No.1 herein, who
was neither the party in a proceeding under Section 144 of the Code of
Criminal Procedure nor under Section 145 of the Code of Criminal
Procedure on its conversion and the same was entertained by the 1st
Additional Sessions Judge, Hazaribagh in Criminal Revision No.126 of
2007 and by the impugned order dated 7.3.2008, allowed the revision filed
by a stranger and set aside the order of Sub Divisional Magistrate asking
him to drop the proceeding under Section 145 of the Code of Criminal
Procedure.
3. The learned senior counsel Mr. Jai Prakash, at the outset,
submitted that the order of the Sub Divisional Magistrate rejecting the
prayer of the opposite party Nos. 3 and 4 i.e. the 2 nd party of the
proceeding for dropping the proceeding was in the nature of interlocutory
application and its dismissal by the Sub Divisional Magistrate, Hazaribagh
was in the nature of interlocutory order, which was not revisable at all.
4. From bare perusal of the impugned order, it would be
evident that the order refusing to drop the proceeding under Section 145
of the Code of Criminal Procedure was not revisable under Section 397(2)
of the Code of Criminal Procedure and the revisional court not only
entertained the criminal revision against the interlocutory order but also
passed the order as well by applying the provision of Section 115 of the
Code of Civil Procedure. A proceeding under Section 145 of the Code of
Criminal Procedure would be governed by Section 397 of the Code of
Criminal Procedure in so far as, if any revision is preferred against the
final order in terms of the provision of law and proposition made thereon
interpreting the law. Stranger of the proceeding had no right or claim at all
to prefer any revision, in the given facts and circumstances of the case
and that too against the order, which was not revisable.
5. Opposite party No.1 Naresh Chandra Agarwal entered
appearance on receipt of the notice by executing vakalatnama in favour of
his lawyer Mr. K.P. Choudhary and others, but no counter-affidavit was
filed on his behalf controverting the contention either on facts or on law.
6. I have carefully gone through the order impugned dated
7.3.2008, recorded by the 1st Additional Sessions Judge, Hazaribagh in
Criminal Revision No.126 of 2007 and I find that he exceeded from his
jurisdiction by allowing the revision of an interlocutory order and therefore,
the order impugned suffers from illegality. In this case, the issue was as to
whether an interlocutory order in the nature of rejection of a petition,
wherein prayer was made for dropping of a proceeding under Section 145
of the Code of Criminal Procedure was revisable or not. To my view, it
was not revisable, as the order impugned did not affect the right of any of
the parties conclusively and finally. Learned revisional court erred by
observing,
“It is well settled principle of law that when the matter is
pending before Civil Court, or decided by it, proceeding u/s 145
Cr.P.C. cannot be proceed. So, the order passed by the learned
S.D.M, Hazaribagh dt. 29.6.2007 in Misc. Case No.123/05 is
unwarranted and without jurisdiction.”
I find that the learned revisional court further erred by
recording the following order:
“The order dt. 29.6.2007 passed by the learned S.D.M.,
Hazaribagh is hereby set aside. The learned S.D.M., Hazaribagh is
directed to drop the proceeding u/s 145 Cr.P.C. and to release the
properties in dispute, if attached u/s 146(1) Cr.P.C.
This criminal revision application is accordingly disposed of.”
7. From the above orders, it is clear that the learned revisional
court failed to appreciate the provisions of a proceeding under Sections
144, 145, and 146 of the Code of Criminal Procedure and passed an
erroneous order, in the manner indicated above. It is relevant to mention
that no request was made by either of the parties for release of the
properties in dispute as it was not the issue that any property or part
thereof involved in the proceeding was attached, in that manner, the
revisional court exceeded from its jurisdiction.
8. For the reasons stated above, the order impugned dated
7.3.2008, recorded by the 1st Additional Sessions Judge, Hazaribagh in
Criminal Revision No.126 of 2007 needs interference, accordingly, the
same is set aside with the direction to the Sub Divisional Magistrate,
Hazaribagh to proceed with the proceeding under Section 145 of the
Code of Criminal Procedure, arising out of Misc. Case No.123/05 so as to
conclude it preferably within three months.
9. This petition is accordingly allowed.
(D.K. Sinha, J.)
S.B./A.F.R.