MANOJ BHANDARI Vs. SARABJEET SINGH CHOPRA

JUDGEMENT

(1.) By this application the petitioners have prayed for quashing the proceeding drawn against them under Section 145 of the Code of Criminal Procedure (the Code) in respect of the immovable properties in the district of Hazaribagh and also the order passed by the Court below under Section 145(1) of the Code dated 5-4-1982.

(2.) Learned Counsel appearing on behalf of the petitioners challenges the very basis of initiating the proceeding under Section 145 of the Code. No show cause has been filed by the petitioners in the Court below. At this stage I am not inclined to interfere with that part of the order.

(3.) With regard to the order passed by the Court below under Section 146(1) of the Code it was contended that the materials that were before the Court below might have been sufficient for drawing up a proceeding under Section 145 of the Code, but, according to the learned Counsel, the Court below not only drew up the proceeding that simultaneously passed the order under Section 146(1) of the Code. It was contended on behalf of the petitioners that the Magistrate could not have simultaneously passed the order under Sections 145 and 146(1) of the Code. Reliance was placed in Mahendra Tewari v. Mostt. Lal Puri Devi 1981 B.B.C.J. 570. Learned Counsel appearing on behalf of the opposite party contended that there was no bar under the Code for the Magistrate to pass an order under Section 146(1) simultaneously with an order under Section 145 of the Code. For this contention he relied on Gaya Singh and Ors. v. Doman Singh . Learned Counsel for the opposite-party has relied on some observations in Gaya Singh's case (supra) wherein it has been stated that it was open to the Magistrate while initiating a proceeding under Section 145 of the Code to attach the subject-matter in dispute without hearing the other side. The question that was referred to the Full Bench was whether under the provisions of the Code the Magistrate initiating a proceeding under Section 145 of the Code can attach the subject-matter of the dispute under Section 146(1) of the Code without hearing the parties and whether while the order of attachment continues, he can proceed to disposed of the said proceeding. In that case it was observed that the Magistrate had power to pass order both under Sections 145 and 146(1) of the Code. In Mahendra Tewari's case (supra) a Division Bench of this Court observed that the order of attachment cannot be passed simultaneously in the sense that the Magistrate while initiating the proceeding under Section 145 of the Code cannot at the same time make an order of attachment. The order of attachment has got to be made subsequent to the initiation of the proceeding under Section 146 of the Code. In view of the law laid down in Mahendra Tewari's case (supra) which is to the point it must be held that the Magistrate could not have passed an order under Section 146(1) of the Code simultaneously with an order under Section 145 of the Code. It was conceded on behalf of the petitioners that the Magistrate has power to pass an order under Section 146(1) of the Code on the same date even without hearing the other side if materials are brought on record which satisfied the Magistrate for passing an order under Section 146(1) of the Code.