N S NANJUNDASAMY Vs. N VENKATACHALAM

JUDGEMENT

(1.) ON 8. 1. 1992, the Executive First Class Magistrate and assistant Collector of Pollachi, passed in M. C. No. 1 of 1992 on his file a preliminary order under Sec. 145 (1), Criminal Procedure Code, stating that he is satisfied that a dispute is existing between' 'A''and''B''parties therein over the possession and management of Arulmighu Nanjundeswarar temple at Nallatipalayam Village, Pollachi Taluk, that both claim possession, management and conduct of pooja etc. , and that they are likely to cause breach of peace and disturbance to public tranquillity and that he thereby directs that both the parties attend his court and file their respective claims over the temple. In the meantime, they were directed to desist from any act leading to breach of peace and that they should not enter upon lands till final orders are passed under the section. ON the same date he passed another order under sec. 146, Criminal Procedure Code, directing attachment of the said properties by taking and keeping possession thereof and to hold the same under attachment until the decree or order of the competent court determines the rights of the parties on the claim to possession.

(2.) ' 'A' 'party to the proceedings seeks to quash those orders in O. P. Nos. 602 and 603 of 1992 respectively. Thiru Gopinath, learned counsel for the quash petitioners submits that the preliminary order cannot be sustained for the reason that the grounds of satisfaction are not reflected thereon. Besides, the direction that both parties should not enter on the land is unsustainable. And since the preliminary order itself is not in order, the subsequent order of attachment under Sec. 146, Criminal Procedure Code cannot be sustained.

(3.) LEARNED counsel for the quash petitioners also submits that since the preliminary order under Sec. 145 (1), Criminal Procedure Code is itself not in order, the subsequent order under Sec. 146, Criminal Procedure code to attach the property, cannot be sustained. We have already seen that the preliminary order, in this case, certainly is not in consonance with the contemplation under Sec. 145, Criminal Procedure Code. In other words, the proceedings initiated under Sec. 145, Criminal Procedure should be held to be a non est. Therefore, there cannot be a subsequent order, regarding attachment of the properties. In view of the fact that the very foundation of the preliminary order itself is not valid and that order is vitiated, evidently, the subsequent order of attachment passed under Sec. 146, Criminal Procedure Code is also liable to be quashed.