KEHAR SINGH Vs. BAL KISHAN ETC.

JUDGEMENT

(1.) THIS petition is directed against the order dated November 24, 1977 of Executive Magistrate (Smt. Manju Gupta), Sonepat, - -vide which she held that the Respondents were entitled to remain in possession and vacated the order of attachment of the land in dispute. This order was (sic) by the learned Additional Sessions Judge (Shri Ram Saran Bhatia), Sonepat on March 21, 1978.

(2.) THE sole argument advanced by the learned Counsel for the Petitioner is that the Magistrate cannot pass the impugned order under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the Code) after she had passed the order of attachment under Section 146(1) of the Code. Admittedly, the parties have also gone to the civil Court which has decided the matter in favour of the second party, that is the Respondents in the present petition. The learned Executive Magistrate also, - -vide the impugned order decided that the second party is entitled to remain in possession unless and until ejected in due course of law and the second party is also entitled to the money which had been collected by the Receiver from the income of the land in dispute during this case and the attachment order was vacated. The learned Counsel for the Petitioner relied upon certain authorities of Patna. Rajasthan and Delhi High Courts wherein it has been held that the proceedings under Section 145 of the Code come to an end as soon as the order under Section 146 of the Code is passed. These authorities are reported in Md. Muslehuddin and Anr. v. Md. Salahuddin, 1976 Cri. L.J. 1150 (Pat.), Hakim Singh and Ors. v. Girwar Singh and Ors., 1976 Cri.L.J. 1915 (Del) and Mansukh Ram v. The State and Anr., 1977 Cri.L.J. 563 (Raj). The argument of the learned Counsel precisely is that once an attachment is made under Section 146(1) of the Code on the ground of emergency, the proceedings under Section 145 come to an end. He puts special emphasis on the words appearing in Section 146(1) of the Code "until a competent Court has determined the rights of the parties thereto with regard to the person enticed to the possession thereof" read with the provisions empowering such Magistrate to withdraw the attachment on his satisfaction as to the non -existence of likelihood of breach of peace with regard to the subject matter of the dispute. Under the (old) Code, the Magistrate was empowered under Section 145(4) to attach the property in case of emergency either before an enquiry or after completion of enquiry. Under the present Code the first kind of attachment in case of emergency with the qualifying words 'pending his own decision in the case' have been obliterated. The Executive Magistrate, therefore, was empowered under the (old) Code to attach the land in case of emergency either before the commencement of the enquiry under Section 145(4) or after the conclusion thereof. Under the present Code, a separate provision has been made empowering the Magistrate to attach the subject matter of the dispute and appoint a receiver under Section 146(1) of the Code which is in the following terms:

(3.) FOR the reasons recorded above, this petition fails and is dismissed.