E G THIMMAPPIAH Vs. GURUSIDDAPPA

JUDGEMENT

(1.) This is a petition under S.482 of the CrlPC and is directed against the order of the Sub-Divl Magisvrate, Bangalore causing attaenmeat of the disputed land and appointment of a receiver in respct thereof, presumably under S.146 of the said Code. As the order fo the learned Magistrate indicates, the Police Sub-Inspector, Yeshawamhapur filed a report under S.145 of the CrlPC, stating that in respect of Survey Mos.37, 38 and 41 of that village a dispute likely to cause breach of the peace existed between the petitioners who were the second party and respondents 1 to 5, who were the first party before him it was mentioned that one of the parties applied to the Land Reforms Tribunal for conferring occupancy lights and besides that several complaints were filed by the respective parties claiming possession in their favour. There were also standing crops of Ragi, Avare and Jowar and the learned Magistrate considered that there is likelihood of breach of the peace and upon satisfaction by the report of the Police Sub-Inspector, attached the lands as well as the crops. She also appointed a receiver of the property. The said order of the learned Sub-Divl Magistrate is being sought to be quashed by the present application.

(2.) It is more than clear from the scheme of Ss.145 and 146 of the CrlPC, that the Executive Magistrate has to be satisfied from a report of a Police Officer or upon other information that a dispute likely to cause a breach of the peace exists and upon that satisfaction he makes an order in writing stating the grounds of his reasons of so satisfying and requiring the parties to attend the Court in person or by Pleader on a specific date and time and to put in written statement as respects the fact of actual possession of the subject matter of dispute. Instead of making that preliminary order, the Executive Magistrate, in the instant case, has straight-away passed the order of attachment and also appointment of a receiver. That order was made under Sec.146 of the CrlPC of which the opening words are: that it is only after the Magistrate passes the preliminary order under sub-sec(1) of Sec.145 of the CrlPC, that he can make an order of attachment and appointment of a receiver. In a case where the preliminary order is not passed, the very order of attachment and appointment of receiver shall be vitiated. There is an affidavit filed by one of the petitioners that no prder besides the impugned one is passed by the learned Sun-Divisional Magistrate.

(3.) That beingh the position, any amount of persuasion on the part of Police Sub-Inspector would not have authorises the Magistrate to order for attachment or for appointment of receiver. The learned Sub-Divisional Magistrate could however apply her mind for the preliminary order under S.145(1) of the CrlPC, and in case she thought that a preliminary order was required to be passed, she should have passed that order in the first instance. Only thereafter certain conditions being made out she could make the order of attachment or appointment of receiver. Obviously, she has not done so and her order is prima facie illegal.