SHITAL PD PATEL Vs. RAJA RAM

JUDGEMENT

(1.) THIS reference has been made by brother K. C. Agarwal, J. before a larger bench. The question referred is as below : "Whether the property which has been attached under sub-Sec. (1) of Sec. 146 CrPC can be released only after the rights of the parties have been determined by a competent court and that the Magistrate has no power to proceed further u/Sec. 145 CrPC excepting that he may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of the breach of the peace in regard to subject of the dispute".

(2.) IN the instant case a preliminary order was passed by the Magistrate u/Sec. 145 CrPC on 5th June, 1975, as he was satisfied that there was a dispute with regard to plot no. 31/1 and that there was an apprehension of the breach of the peace. By the same order the Magistrate was satisfied that it was a case of emergency and directed the attachment of the plot. The parties were also required to put in their written statements and adduce evidence in respect of their respective claims. On 18th July, 1975 the Sub Divisional Magistrate after perusing the papers relating to the attachment of the property passed the order that the property has been attached u/Sec. 146 (1) and the parties were directed to get their rights decided through a competent court. The property was to remain under attachment till then.

(3.) HOWEVER, a Division Bench of our High Court in Sohan Lal Burman v. State of U. P., 1977 AWC 210 took the view that the case decided by G. D Srivastava, J. reported in 1977 AWC 33 (supra) did not lay down the correct law. Perhaps, if the view taken in 1977 AWC 210 was brought to the notice of K. C. Agarwal, J. the necessity for reference would not have arisen.