JASWANT SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner impugns the order of the Sub Divisional Magistrate, Sunam, dated October 24, 1986, purported to have been passed under Section 146 of the Criminal Procedure Code. The operative part of this order reads as follows :-

(2.) A combined reading of sections 145 and 146, Cr.P.C., reveals that the latter section is only a corollary to the former and the Magistrate while taking action under Section 146, can attach the disputed property in three situations (i) if the Magistrate at any time after making the order under sub-section (1) of Section 145 considers the case to be one of emergency; or (ii) if he decides that none of the parties was then in such possession as is referred to in Section 145; or (iii) if he is unable to satisfy himself as to which of them was then in possession of the subject matter of dispute. In the first situation he can attach the property at any time after making the order commonly known as preliminary order under Section 145(1) while in the other two situations he can act under Section 146 only at the final stage of the proceedings. As already pointed out above, in the instant case, the Magistrate has acted or passed the impugned order in the given situation as mentioned at No. (i). Could he then stop or close the proceedings under Section 145 after effecting attachment of the disputed property under Section 146 ? To my mind, he could not. By now it is the settled position (see Mathuralal v. Bhanwarlal and another, AIR 1980 SC 242) that the jurisdiction of the Magistrate does not end as soon as he has ordered attachment of the disputed property on the ground of emergency. If that is so, as it is, then he has to conclude the proceedings under Section 145 initiated with the passing of the preliminary order under sub-Section (1) of this Section by disposing of the matter on merits. For this view of mine I seek support from the following observations made by their Lordships of the Supreme Court in the above noted case :-

(3.) FOR the reasons recorded above this petition is allowed and while setting aside the impugned order I send the case back to the Executive Magistrate, Sunam to decide it afresh in accordance with law and the observations made above. The parties through their counsel are directed to appear before him on January 30, 1987. Petition allowed.