KARTARSINGH NARAINSINGH Vs. LALLUSINGH PADAMSINGH

JUDGEMENT

(1.) THE only question which arises for consideration in this revision application is whether a Magistrate can order attachment of the property in dispute under the 3rd proviso to Sub-section (4) of Section 145, Cri. P, C. before the preliminary order passed under Sub-section (1) of Section 145, Cri. P. C. has been served on the opposite party.

(2.) RELIANCE has been placed by the learned counsel for the applicants on the case of Sri Ram v. State, AIR 1958 Punj 47. That was a case in which the learned Judge who decided it had come to the conclusion that no preliminary order had in fact been passed by the Magistrate concerned. No doubt the learned Judge further held that even on the assumption that the order dated 25-5-1956 is a preliminary order under Sub-section (1) of Section 145, Cri. P. C. , the Magistrate had no jurisdiction to issue an order of attachment prior to its service on the opposite party. The observations of the learned Judge on this point are clearly obiter. There is no reason to suppose that the words 'at any time' used in the 3rd proviso to Subsection (4) of Section 145, Cri. P. C. are limited in their scope by the provisions of sub-section (4 ). All that Sub-section (4) of Section 145, Cri. P. C. signifies is that after the preliminary order has been served on the opposite party, the Magistrate shall proceed to hold an inquiry into the respective claims of the parties. The intention of the legislature in enacting the 3rd proviso to this subsection clearly was to enable a Magistrate in a case of emergency to attach the property in dispute at any time irrespective of what is provided in the main enactment.

(3.) I am afraid the interpretation placed upon this proviso by Tekchand, J. has the effect of rendering nugatory the words 'at any time' which have been designedly used by the legislature in proviso 3 to Sub-section (4) of Section 145, Cri. P. C. While an exception is a part of the enacting part of a Section, the proviso follows the enacting part of it and is in a way independent of it. (Halsbury's Laws of england 2nd Edition at p. 484, Vol. 31 ). Crawford also has observed in his statutory construction as follows: