Palok Basu, J.:— This application under Section 482, Cr. P.C has been filed against an order of the Magistrate dated 26.7.82 attaching the property in dispute passed under Sections 145/146, Cr. P.C
2. It appears that the applicants had challenged the said order in revision before the Sessions Judge, Buland Shahar who dismissed the same on 30.7.82 Normally under law a petition under Section 482, Cr. P.C against the revisional order is challengeable under Article 226 of the Constitution of India. Looking at the prolonged proceedings since the year 1972 and this petition under Section 482, Cr. P.C having been admitted by this Court on 8.9.82, it does not appeal desirable in the interest of justice to ask the applicants to move another petition and it does appear fit and propel on the circumstances of this case ??? treat this petition as a petition under Article 226 of the Constitution of India so that real justice is done.
3. This case has a chequered history. A proceeding under Section 145 Cr. P.C was initiated in the year 1972 wherein a preliminary order and an order attaching the property in dispute was passed 8th April, 1973. The applicants Iqran and Sharif challenged the existend of the apprehension of breach of ??? through an application. The learned Magistrate held, after hearing the parties that there was in fact no apprehensing of breach of peace and there was dispute. Consequently, the said application was allowed and the proceeding under Section 145, Cr. P.C were dropped.
4. The opposite party, Sheo Kumar Jalan, filed a revision against that order before the Sessions Judge who allowed the same on 25.5.76 Aggrieved the applicants Iqram and Sharif filed Criminal Revision No. 693 of 1976 in this Court which was allowed on 5.10.76 with ??? specific directions that:
“The learned trial Magistrate is directed to dispose of the application of Iqram and others dated 26th April, 1973 in which an objection as to non-existence of apprehension of breach of peace had been taken after taking into consideration of the affidavits and other evidence of the parties which are on record. If he is of the view that there is still apprehension of breach of peace he shall proceed with the case in accordance with law and if he is of the view that no such apprehension exists he shall drop the proceedings as required under the law”.
5. Before the Magistrate, on remand, an application was moved by opposite party, Sheo Kumar Jalan, that in order to give effect to this Court's order dated 5.10.76 the position as it existed before he had passed the original order of dropping the proceedings, should be restored. In other words it was contended that he property should be re-attached and then only the question should be decided, this application found favour with the Magistrate who passed an order dated 26.7.82 for re-attachment of the property, Aggrieved again, Iqram and Sharif filed yet another revision before the Sessions Judge who dismissed it summarily holding that the order of the Magistrate dated 26.7.82 being an inter locutory order revision where from was not maintainable. Hence this application in this Court by Iqram and Sharif.
6. It has been stated specifically in para 6 that the Magistrate had released he property in favour of the applicants hen he had dropped the proceedings initially and thereafter actual attachment of the plots was never done because of the interim orders obtained by the application from time to time from different courts which he had been approaching.
7. Section 145 Cr. P.C has been enacted is an interim measure only where breach of peace is imminent empowering the executive Magistrate to maintain law and order. The dragging of the proceedings from 1973 to 1991 indicates that neither there is apprehension of breach of peace nor is there any justification for continuing the proceedings before the Magistrate any more on facts as were stated before him in the year 1973. From the orders filed in this petition it does not appear that any further evidence was produced by the parties, after the remand order was passed by this Court. Consequently it will be an abuse of the process of the court if these proceedings under Section 145 Cr. P.C are permitted to continue any more on those materials.
8. This petition therefore, succeeds and is allowed. The entire proceedings before the Magistrate under Section 145 Cr. P.C giving rise to case No. 42 of 1979 changed number after remand are quashed.