SHANKER Vs. SAKHIYA

JUDGEMENT

(1.) The relevant facts, briefly stated, are these; on being satisfied from the information given by Sakhiya that there existed dispute likely to cause a breach of the peace as respects the fact of actual possession certain agricultural lands between Sakhiya on one side and Shanker and two others on the other, the Sub-Divisional Magistrate, Raghurajnagar passed a preliminary order under Sub-section (1) of Section 5 of the Code of Criminal Procedure on 15.3.1982 and directed both the parties to put in written-statements of their respective claims on the next date. Thereafter, after both the parties submitted their respective claims, and the Sub-Divisional Magistrate fixed the case for receiving their evidence, Sakhiya made an application on 21.7. 1982 for the attachment of the subject of dispute under sub-section (I) of Section 146 on the ground that on account of certain acts done by the opposite party on 15.7.1982 there existed an emergency for doing so. The application was heard by the Sub-Divisional Magistrate on 14.9.1982 and an order was passed by him on the same day allowing it. Being aggrieved by the order, Shanker and others filed a revision in the Court of Session. The Court of Session vide its order dated 13.9.1983 upheld the order passed by the Sub-Divisional Magistrate. However, while doing so it gave certain directions that were material. It was of the opinion that in view of the provisions of sub-section (1) of section 146, having passed an order of attachment of the subject of dispute on the ground of emergency under the said sub-section, the Sub-divisional Magistrate was no longer required to pass any final order under sub-section (4) of Section 145 of the Code but was merely to wait until a competent court determined the rights of the parties with regard to the person entitled to the possession of the subject of dispute. It is being aggrieved in the matter that Shanker and others have filed the present petition under section 482 of the Code of Criminal Procedure in this Court.

(2.) The learned counsel for the applicants namely Shankar and others is unable to satisfy this court that there exists any ground for this court to interfere with the interim order of attachment passed under sub-section (1) of Section 146 in exercise of its inherent power under Section 482 of the Code. It is clear from a perusal of the written-statements of both the parties that the present case was no one in which the question of any of them claiming the subject of dispute to be joint lands of the parties or they being in joint possession of the same was involved. In the circumstances, it is not open to the applicants to attack the interim attachment order on the said basis for the first time in this petition. The interim order of attachment was passed by the Sub-Divisional Magistrate on the ground of emergency in exercise of his discretionary powers under subsection (1) of Section 146 of the Code. This court sees no reasons to interfere with the exercises of the said discretionary power in this petition under section 482 of the Code.

(3.) It is, however, noted this court that the directions given by the court of session while upholding the order of attachment passed by the Sub-Divisional Magistrate are contrary to the provisions of law and have to be set aside. As has been pointed out by the Supreme Court in Mathuralal v. Bhanwarlal and another, the Magistrates jurisdiction to continue with the matter and pass the final order under subsection (4) of Section 145 does not come to an end on the interim order of attachment on the ground of emergency being made under subsection (1) of section 146 of the code. The direction given by the Court of session to the Sub-Divisional Magistrate to wait until a competent court determined the rights of the parties with regard to the person entitled to possession of the subject of dispute is, therefore, misconceived.