# Revati Raman & others Revisionists v. State of U.P. & another

- **Citation:** (2007) 1 ILRA 226
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-08
- **Case number:** Criminal Revision No. 6130 of 2006
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revati-raman-others-revisionists-v-state-of-u-p-another-40837
- **Pages:** 3

## Headnote

Code
of
Criminal
Procedure-397(2)-
Revision-Order passed under Section
146(1) Cr.P.C. being preventive measure
an interlocutory in nature-not a final
order-hence revision not maintainable.

Held Para 7

In view of the above, the order under
Section 146(1) Cr.P.C. can be bracketed
only within the purview of an order
which is interlocutory in nature and not
as an order which is final. Hence
revision under Section 397(2) Cr.P.C. is
barred against such an order.

## Text

226 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
bail was because of extraneous reasons
than those, which are relevant under the
law. Moreover, this bail cancellation
application was filed on 29th July 2004. It
has come up for final disposal after a gap
of two years. During this period of two
years there has been no complaint at all
against accused respondents. The gap of
two years is sufficient enough not to
interfere with the bail granting order once
there is no allegation of tampering with
the record or evidences or fleeing from
justice.

10. Further the contentions of the
counsel for the applicant that the power
filed on behalf of the accused did not
contain the signature of the counsel, I am
of the view that the said technicality is no
ground to cancel the bail. A perusal of the
power definitely shows that the counsel
who appeared on behalf of the applicant
had got his stamp affixed in the memo.
That, in my view is sufficient compliance
so far as engagement of a counsel is
concerned in a criminal matter.

11. In view of what has been stated
herein before, I am of the opinion that
there is no reason to cancel bail of
accused respondent no.2 which has been
allowed by the Additional Sessions
Judge/Special
Judge
SC/S.T.
Act,
Ghaziabad vide his Impugned order dated
6.7.2004 in Crime No. 436 of 2004 under
Section 302, 504 I.P.C., P.S. Kavi Nagar,
district
Ghaziabad.
Resultantly,
this
criminal miscellaneous bail cancellation
application being devoid of merit is
hereby dismissed.
----------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.11.2006

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Revision No. 6130 of 2006

Revati Raman & others ...Revisionists
Versus
State of U.P. & another ...Opposite Parties

Counsel for the Revisionists:
Sri D.K. Tiwari

Counsel for the Opposite Parties:
A.G.A.

Code
of
Criminal
Procedure-397(2)-
Revision-Order passed under Section
146(1) Cr.P.C. being preventive measure
an interlocutory in nature-not a final
order-hence revision not maintainable.

Held Para 7

In view of the above, the order under
Section 146(1) Cr.P.C. can be bracketed
only within the purview of an order
which is interlocutory in nature and not
as an order which is final. Hence
revision under Section 397(2) Cr.P.C. is
barred against such an order.

(Delivered by Hon'ble Vinod Prasad, J.)

1. The applicants have filed this
revision aggrieved by an order dated
11/10/2006 passed by Sub Divisional
Magistrate, Handia in Case No. 44 of
2006 Gauri Shanker Vs. Revati Raman
and others under Section 145 Cr. P.C. by
the
impugned
order,
the
S.D.M.
concerned has passed an order under
Section 146(1) Cr. P.C. for attachment.

2.

Learned
counsel
for
the
revisionists contended that the Magistrate
1 All] Revati Raman and others V. State of U.P. and others
227
has committed an illegality by passing the
impugned order. He further contended
that the there was no justification for the
trial court to pass such an order.

3. In my view, the order under
Section 146(1) Cr. P.C. is an interlocutory
order and revision is not maintainable
against such an order being barred by
Section 397(2) Cr. P.C. The order under
Section 146(1) Cr. P.C. is only an
enabling provision giving power to the
Magistrate
concerned,
during
the
pendency of the proceeding under Section
145, to attached the property so as to
obliterate apprehension breach of peach
during the pendency of 145 proceeding
itself. By passing an order under Section
146(1) Cr. P.C. no proceeding is finalized.
It is only an interim order which is in the
nature of a preventive measure. The court
concerned is required to decide the
question of possession two months prior
to the passing of the preliminary order
and inter regrum in deciding the said
question of possession, the power under
Section 146(1) Cr. P.C. has been
conferred, by the statue, on the Magistrate
for the simple reason that during the
pendency of the determination on the
question of possession the parties should
not take undue advantage and commit
breach of peace. I may remind that
145(1) Cr.P.C. proceeding is also started
to obliterated apprehension of breach of
peace and no change in the property in
question should be permitted to be done
meanwhile. The very phraseology in
which Section 146(1) Cr. P.C. as is
enacted by the legislature indicates that an
order under Section 146(1) is an interim
order and the said order is not covered
within the word "proceeding" as is
contemplated under Section 397 Cr.P.C.
which gives power to this Court and to the
Session Judge to revised any order or any
proceeding of the lower Court.

4.
For clarity of understanding
Section 146 Cr.P.C. is quoted below:

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, of 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 determine 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, the may, if no
receiver in relation to such subject of
dispute has been appointed by any Civil
Court, make such arrangement 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
228 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
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.

5. From the bare reading of the said
statutory provision, it is clear that if at the
time of passing an order under section
145(1) Cr.P.C. or after making of the
aforesaid order if the Magistrate considers
"the case to be one of emergency" or "if
he decides that none of the parties was
then in possession as is referred to under
Section 145" or "if he is unable to satisfy
himself as to which of them was then in
possession of the subject of dispute" he
can pass an order under Section 146(1)
Cr.P.C. These three conditions are sine
quo non for exercising power under
Section 146(1) Cr. P.C.

6. Suffice to it to say that two
subsequent conditions do not apply on the
facts of the present case. So far as the
first condition is concerned, the same is
related to a case of emergency. It is a
discretionary power of the Magistrate
based on his satisfaction on the tangible
material that emergency exist for passing
of an order under Section 146(1) Cr.P.C.
The said order can be withdrawn,
annulled or modified by him at any
subsequent stage of proceeding on being
satisfied that the emergency no longer
exists.

7. In view of the above, the order
under Section 146(1) Cr.P.C. can be
bracketed only within the purview of an
order which is interlocutory in nature and
not as an order which is final. Hence
revision under Section 397(2) Cr.P.C. is
barred against such an order.

8. This revision, therefore, is not
maintainable and is hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.10.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 32177 of 2005

Ganesh Swaroop Tandon
...Petitioner
Versus
Anchal Kumar Tandon and others

 ...Respondents

Counsel for the Petitioner:
Sri M.A. Qadeer

Counsel for the Respondents:
Sri T.A. Khan

Code of Civil Procedure-Order 8 Rule-6A-counter claim-written statements filed
on 3.10.02-amendement application in
counter claim filed on 31.07.04-heldcould not be filed.

Held: Para 5

A perusal of the aforesaid provision
indicates that a counter claim could be
filed where the cause of action accrued
either before or after the filing of the suit
and, in· any case, before the filing of the
written statement. The counter claim
cannot be filed where the cause of action
accrued to the defendants after the filing
of the written statement. In the present
case, the written statement was filed on
3.10.2002 and-the cause of action, as
admitted by the defendant, accrued on
31.7.2004, i.e., after the filing of the
written statement. Clear1y the said-
counter claim could not be filed in the
present proceedings in view of the
mandatory provision of Order 8 Rule
6Aof the C.P.C.
Case law discussed:
AIR 1966 SC-2222