KRUSHNA CHANDRA PATEL Vs. KHETA KURI PATEL

JUDGEMENT

(1.) The members of the first party in a proceeding under S. 145 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code"), have filed this revision challenging the validity of the order dated 7-12-1995 under S. 146(1) of the Code attaching the disputed property.

(2.) On the basis of Non-FIR No. 110/95 submitted by the Officer-Incharge, Laikera Police Station, a proceeding under S. 145 of the Code was initiated by the Executive Magistrate on 25-10-1995, wherein the present petitioners had appeared on 13-11-1995 and prayed for time to file show-cause which was duly granted and the case was posted to 13-12-1995 for filing of written statement. It transpires that the second party member Jaya Sankar Patel expired on 28-11-1995 and on 7-12-1995, the legal representatives of said Jayasankar Patel filed a petition for being impleaded as parties as well as a petition to attach the property under S. 146(1) of the Code. In the said petition, it was alleged that the original second party member had been killed by the members of the first party in connection with a quarrel relating to the disputed land and the latter had been arrested and remanded to jail custody. It was further asserted that after the said incident, there was serious apprehension of breach of peace. The Executive Magistrate on the basis of the aforesaid petition which had been supported by affidavit passed an order on 7-12-1995 attaching the disputed property under S. 146(1) of the Code and restraining both the parties to enter upon the said land. The Magistrate further directed the Officer-in-charge, Laikera Police Station to attach the property and to appoint a Zimadar not connected to any of the parties.

(3.) The learned counsel on behalf of the petitioners has submitted that the impugned order under S. 146(1) has been passed without affording any opportunity of hearing to the petitioners who had already entered appearance through their advocate before the Executive Magistrate. It is further submitted that paddy sheaves belonging to the petitioners had been stacked on the disputed land and the Magistrate had no jurisdiction to attach the moveable property and to appoint a Zimadar in respect of the said property. He has relied upon the decisions reported in AIR 1961 Raj 216 : (1961 (2) Cri LJ 552) (Tikuda v. State); 1986 Cri LJ 2008 (Delhi) (Anand Ram Nanda v. The State); 1975 Cri LJ 621 (J and K), (Gulla Shah v. Mohd. Amin Shah) in support of the first contention and 1992 Cri LJ 278 (Madh Pra) (Rewachand v. State of Madhya Pradesh) in support of the second contention.