NATHUNI RAI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THE applicants have assailed the order dated 5th June 1982 of the Sub-Divisional Magistrate-, Zamania, District Ghazipur directing attachment under Section 146 CrPC vide Annexure XI aswell as the order dated 26th June 1982 of the Sessions' Judge, treating the order of the Sub- Divisional Magistrate as interlocutory order and rejecting the revision on such ground. THE case has a chequered history. Proceeding was initiated under section 145 CrPC by passing a preliminary order dated 29th September 1980, Annexure III. Opposite party no. 2 Smt. Ram Piari claims to be the daughter of Ram Yas Rai, the last owner of the property involved while applicant no. 4, Smt. Rajpati is the mother of Ram Yas Rai who died in the year 1979 and according to applicants, Ram Piari is not the daughter of Ram Yas Rai and applicant no. 4 Smt. Rajpati happened to be the sole heir and legal representative of Ram Yas Rai. According to the applicants, Smt. Rajpati executed sale deeds in favour of applicants no. 1 to 3 in September 1979 and February 1980 in respect of plots involved in the present proceeding and some other plots :and since then applicants nos. 1 to 3 are in peaceful possession of the property.. According to the applicants, one Radha Kishun Rai is interested in grabing the property and Ram Piari, his sister, acted in collusion with him. An application was preferred by Smt. Ram Piari to the Superintendent of Police, Ghazipur, Annexure I, and the Superintendent of Police sent the application to the SDM Zamania who called for the police report. It is further urged that the aforesaid Radha Kishan Rai got a collusive police report: from the Station Officer of P. S. Gahmar vide Annexure II and on basis of such report the SDM passed a preliminary order on 29th September 198ft. It is alleged that thereafter on 21st February 1981 Smt. Ram Piari prayed for attachment of the property Annexure IV and another application was preferred on 27th February 1981 to obtain a report from the police officer and ultimately the police officer reported that the crop has already been thrashed and taken away by the applicants vide Annexure IX. Radha Kishun Rai lodged a report about causing injury on 2nd May 1982. THE matter was not further persued. It could appear from Annexure XI that the Magistrate observed that earlier application of opposite party was lying without order and she then filed two applications dated 12-3-82 and 25-3-1982 for attachment and the police report was called which was vague to the effect that crop is ripe and both the parties are making preparation for thrashing it and after hearing the parties on 2-4-1982 the Magistrate passed an order under Section 145 (8) CrPC for protecting the crops and then a report was received on 12-4-1982 that one Nathuni Ram Basula has already thrashed and removed the crop and ultimately a report dated 14-5-1982 of the Station Officer Gahmar was received, conveying that there has been exchange of blows between the parties centering round the land and house and one Radha Kishun has lodged the report under section 323 IPC and proceeding under section 107/116 has been initiated. It was recommended that the property may be attached. THE Magistrate has then mentioned the various documents he perused including police report, injury report, report of FIR etc. THE Magistrate then concluded the matter by observing that after the perusal of the report dated 14-5-1982 of the Station Officer Gahmar, copy of the FIR and Photostat copy of the injury report he is satisfied that the apprehension of breach of peace continues and the situation is grave and to prevent the breach of peace it is necessary to attach the property and the Magistrate then passed the impugned order. THE order in question is quite: a detailed one. THE applicants maintained that the reports of the Naib Tahsildar and Tahsildar indicated that there was no apprehension of breach of peace and Smt. Ram Piari has no concern with the disputed property and she has been set up by Radha Kishan Rai. It is further alleged that the Magistrate has passed his order dated 5th June 1982 on the unauthorised and collusive report of the police authority and the Tahsildar and the Naib Tahsildar gave reports favourable to the applicants that they are in possession and there is also no apprehension of breach of peace.

(2.) THE first point urged is that as the earlier application of the opposite party preferred in February 1981 did not prompt the Magistrate to pass any order it may be inferred that there Could not be any apprehension of breach of peace for any emergency attachments. I have considered the argument. It is not that the two applications were rejected. If any prompt action on the same was not taken neither the apposite party is to suffer for that nor from such lapse it can be concluded that any apprehension of breach of peace did not exist.

(3.) IT was urged that the reports of the Tahsildar and Naib Tahsildar were favourable to the applicants and the report Annexure VI would indicate that no apprehension of breach existed. I have considered that aspect. The Magistrate is not bound by the reports He has to exercise his mind as to come to his independent judgment and assessment of the situation. The circumstances of this case go to indicate that Smt. Rajpati, applicant no. 4, and Smt. Ram Piari, opposite party no. 2 both are equally keen to grab the property of Ram Yas Rai claiming to lie their sole legal representatives respectively and claiming through Rajpatii applicants no. 1 to 3 as her transferees are also keen to grab the property and such a situation is bound to create apprehension of breach of peace. Apart from that it is noteworthy that the proceedings under Section 145 CrPC has been continuing since much before and it is the emergency attachment which is being challenged. The matter has therefore to be examined from the angle whether the Magistrate committed any illegality in making the emergency attachment at a subsequent stage. Section 146 CrPC clearly lays down that the Magistrate can at any time after making the order under Section 145 (1) CrPC i. e. after initiating proceeding and passing preliminary order, attach property if the Magistrate considers the case to be one of emergency. When that is the position, attachment at any subsequent stage under section 146 CrPC when proceedings under Section 145 CrPC are pending would be legal.