STATE OF MADHYA PRADESH Vs. PREMLAL LALKAJI

JUDGEMENT

(1.) THIS revision comes before a Division Bench upon a reference made by our learned brother Mudholkar J. by his order dated 23-1-1956. He was of the view that the question involved is of considerable importance.

(2.) THE circumstances in which the revision arises are as follows : A challan was presented by the Lalbarra police on 16-11-54 and the Sub-Divisional Magistrate, Waraseoni, passed a preliminary order under Section 145 of the Code of Criminal Procedure against non-applicants 1 and 2 (who will be referred to hereafter as party No. 1) and the non-applicant No. 3 (who will be referred to hereafter as party No. 2 ). Upon the police report the Magistrate found that there was a dispute likely to cause a breach of the peace, existing between the parties. He therefore passed the preliminary order under Section 145 (1), specifying certain lands at the Village Chatera and fixed the case before him for 10-12-1954. Before that date a further application was presented to him by the counsel for party No. 2, complaining that the dispute with party no. 1 had also extended to several more fields comprising an area of about 69. 15 acres. In respect of this additional area of land the learned Sub-Divisional Magistrate also came to the conclusion that an emergency existed and a breach of the peace was apprehended. He ordered the crops standing in these fields to be attached under Section 145, Sub-section (4) of the Code of Criminal Procedure. The property attached was to be released on supratnama of some independent person through the Station Officer, Lalbarra. It is this order which is the subject matter of the revision before us.

(3.) THE learned Additional Sessions Judge who had been approached in the first instance has recommended that that order should be quashed because he was of the view that it is an essential prerequisite to any action under Section 145 of the Code of Criminal Procedure that the Magistrate should pass a preliminary order under Sub-section (1) thereof. In this view the learned Additional Sessions Judge was undoubtedly correct. But the learned Judge went on to hold that in the case of lands subsequently attached in the instant case no such pre, liminary order was passed. He relied upon the authority of Mahomed Hasham v. Mahomed Shami AIR 1919 Nag 160 (A); Emperor v. Sis Ram AIR 1930 Lah 895 (B) and Banka Singh v. Gokul AIR 1927 All 286 (C) and came to the conclusion that even in a case of this kind the drawing up of a formal order under Section 145, Sub-section (1), is absolutely necessary to the initiation of proceedings under Chapter XII of the Code of Criminal procedure,