SADIQ HUSAIN Vs. STATE AND OTHERS

JUDGEMENT

(1.) THIS reference is directed against the order dated 12 -4 -1967 passed by the S.D.M., Faridpur, district Bareilly in the matter of the release of the disputed property from attachment in proceedings Under Section 145 Code of Criminal Procedure.

(2.) THE facts giving rise to this reference are that the property which was the subject matter of those proceedings consisted of agricultural plots grove and some residential quarters situate in village Kareli, Tahsil and district Bareilly. The proceedings commenced on an application dated 8 -6 -1966 made by Sadiq Husain Applicant, the Up Pradhan of the Gram Samaj, Kareli. The allegations made by him were that the property belonged to H.W.M. Hearsey and his sister who left this country after independence and were said to have died heirless, that the property vested in the Gram Samaj and the Applicant became its owner in his capacity as Up Pradhan, that the opposite parties were determined to disturb his possession giving rise to grave apprehension of breach of peace and hence it was prayed that an order Under Section 145 Code of Criminal Procedure be passed. The application was accompanied by an affidavit with the result that on the same day the City Magistrate passed a preliminary order pointing out that from the affidavit he was satisfied that there existed dispute between the parties likely to cause apprehension of breach of peace. The preliminary order recited that "as the matter is of emergency the property in dispute is ordered to be attached and placed in some reliable custody pending enquiry." It would thus be evident that the order of attachment was passed on the same day as the preliminary order and was in fact incorporated in the preliminary order itself. This order could be passed only under the third proviso to Sub -section (5) of Section 145 Code of Criminal Procedure.

(3.) THE case was later transferred to the file of Sri Tripathi, S.D.M., Faridpur. On 12 -4 -1967 he passed an order as under: