RAM KUMAR Vs. JAGDISH PRASAD

JUDGEMENT

(1.) THIS application in revision arises out of the proceedings under Section 145, Cr. P. C. in which a preliminary order was passed by the Magistrate on 10th October, 1973. By this preliminary order attachment was also made of the property in dispute. It appears that subsequently on the application of the parties the Magistrate made a local inspection and thereafter came to the conclusion that as the case was not one of emergency and was likely to lead to miscarriage of justice the order of attachment should be withdrawn. Hence the order attaching the property was withdrawn. Aggrieved thereby a revision was filed before the Sessions Judge, Bareilly in which the preliminary order dated 10th October. 1973 was challenged. It was also submitted before the Sessions Judge that the order dated 2nd November, 1973 modifying the attachment of the property in question was not warranted in law. The Sessions Judge has made and reference to this Court for passing suitable orders.

(2.) I have heard learned Counsel for the parties and have also perused the impugned order. Under Section 145 (1), Cr. P. C. the Magistrate on receiving a report of the police or otherwise has to be satisfied that there existed an apprehension of the breach of peace with regard to immovable property. When he is so satisfied he has to pass a preliminary order under Section 145 (1), Cr. P. C. After the passing of this preliminary order there can be no doubt that the Magistrate has to continue these proceedings till their final culmination. He has to record evidence of the parties and record his findings on the question of possession. He has ultimately to pass an order under Section 145 (4), Cr. P. C. holding one of the parties in possession of the property and directing the other party not to interfere with the peaceful possession of such party unless evicted therefrom in due course of law.

(3.) A perusal of Section 145 (4 proviso (3), Cr. P. C. indicates that an additional power has been conferred on the Magistrate in cases of emergency to attach the subject-matter of dispute pending a decision under Section 145. Cr. P. C. This power can be exercised at any time after the passing of the preliminary order. It may also be exercised at the time the preliminary order itself is passed. In the present case while passing the preliminary order under Section 145 (1), Cr. P. C. the Magistrate has also invoked the provisions of Proviso to Section 145 (4 ). Cr. P. C. and has also passed an order of attachment considering the case to be of emergency. But merely because the order of attachment has also been passed simultaneously, or incorporated along with the preliminary order, does not mean that the order attaching the property is not an order which has been passed under the third proviso to the section. In other words even though both these orders may be simultaneously passed, yet the first order would be deemed to have been passed under Section 145 (1), Cr. P. C. and the second order would be deemed to have been passed under Section 145 (4) third proviso. Therefore, both these orders have to be dealt with separately as they are passed under different provisions of the Code. As I have already mentioned above, once the preliminary order is passed the court has no option but to continue the enquiry and to pass the final order but that would not be the case in so far as the order of attachment is concerned. An order of attachment can be passed at any stage of the proceeding and does not invest the court with the jurisdiction to proceed in the manner prescribed under Section 145, Cr. P. C. This is subject to modifications depending upon the circumstances of each case. In the present case the parties have given an application for spot inspection which was done by the Magistrate, but the Magistrate was of the opinion that no emergency existed, and that allowing the order of attachment to continue would be highly unjust to the parties, I am of the opinion that the Magistrate has every jurisdiction to withdraw the order of attachment, and as such no illegality has been committed by him in modifying the order dated 10th October. 1973, in BO tar as it relates to the attachment of the property. As the apprehension of the breach of peace still exists between the parties, in view of the allegations of the first party, the order dated 10th October, 1973 viz. the preliminary order, as modified is valid in law, and the proceedings shall continue before the trial court till they are finally decided.