M/S INDIAN SULP ACID INDUSTRIES LTD. Vs. GURJIT SINGH PARTNER GURU NANAK CONSTRUCTION COMPANY AMRITSAR

JUDGEMENT

(1.) In this petition under Sec. 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as the Code) the petitioner has sought quashing of the preliminary order passed by the Executive Magistrate, Amritsar (Copy annexure P. 3) vide which the proceedings against the petitioner and the respondents were initiated under Sec. 145 of the Code and the property in dispute was attached under Sec. 146 (1) and the Code vide his order dated September 4, 1981.

(2.) Primarily, the grievance of the petitioner is that the attachment order was passed without hearing the parties. I have pursued the impugned order. It is a composite order vide which both the parties were directed through the Station House Officer concerned not to interfere with the possession of the property till the matter was finally decided. By the same order, the disputed property was attached and the Naib -Tehsilder was appointed as Official Receiver. Such a composite order, to my mind, cannot be passed by the Executive Magistrate in view of the provisions of Ss. 145 and 146 of the Code. Power to attach is given in Sec. 146(1) of the Code, which is in the following terms :

(3.) It is manifest from the aforesaid provision that first the Magistrate has to make order under Sec. 145(1) and after that if he considers the case to be one of emergency and decides that none of the parties was then in such possession as is referred to in Sec. 145 or if he is unable to satisfy himself as to which of them was then in such possession, he may pass the attachment order till the determination by the competent Court of the rights of the parties. From the order it is manifest that he has not complied with the aforesaid provisions. He has also opined that the case is of emergency. Moreover, he was to pass a reparate order of attachment after passing the order under Sec. 145 (1) of the Code. Composite order is not envisaged. The Executive Magistrate had no jurisdiction to pass a composite order like the one under challenge. During the course of arguments Mr. Harbans Singh, Learned Counsel for the respondent, cited Muma Mir v/s. Ghulam Nabi Sheikn, (1980) 7 Cri. L.T. 315, and M.A. Rahaman v/s. State of Andhra Pradesh, 1981 Cri. L.J. 129. It is needless to refer to the decisions in the aforesaid cases because the ratio thereof is not applicable to the facts and circumstances of this case.