RAM PARKASH Vs. RATTAN CHAND AND ORS

JUDGEMENT

(1.) On 11-11-1976 it was reported by the Police City Jammu, to the City (Judicial) Magistrate, Jammu, that a dispute likely to cause breach of peace existed between two groups of people in Kanakmandi Jammu, with regard to the possession of a godown. The Magistrate after recording the statement of the SHO concerned and after being satisfied that a dispute likely to cause breach of peace existed on the spot, drew up a preliminary order on the said date and also as he was further satisfied that the case was one of emergency ordered the attachment of the property in dispute under Sub-section (4) of Sec. 145 of the Code of Criminal Procedure. The police report on the basis of which the proceedings were started indicated further that some goods were lying in the godown, in dispute and some of the articles appeared to have been thrown out of the godown, and therefore, lying on the vacant land near the disputed property. The Magistrate directed that this moveable property also be seized and handed over to a respectable person (who was named in the order) on Superdnama. The orders" of the learned Magistrate were in consequence executed by the police concerned and the moveable property found on or near the disputed property was attached. Afterwards the moveable property consisting of perishable articles was with the consent of the parties disposed of and proceeds' deposited in the court. Aggrieved by the order of the learned Magistrate dated 11-11-76 the petitioners submitted a revision petition before the Additional Sessions Judge, Jammu, on the same grounds on which the present petition in this court has been filed. The learned Additional Sessions Judge, however, dismissed the petition by his order dated 19-1-1977. A further revision has now been taken to this court.

(2.) A perusal of the order dated 11-11-1976 would show that the learned Magistrate has passed a lengthy order wherein after narrating the facts of the case, and after taking into consideration material placed on record he has found himself satisfied that dispute with regard to the possession of the godown existed between the parties and that this dispute was likely to cause breach of peace on the spot and therefore, taking recourse to sub section (1) of Section 145 Cr. Pr. Code, directed that notices be issued to the parties to appear before him and submit their respective claims with regard to the possession of t he disputed property on the relevant date. He also recorded that from the report of the police and the statement of the SHO it' appeared to him that the matter was of an urgent nature, and if steps under sub-section (4) of Section 145 Cr. P. Code were not immediately taken and the property in dispute was not attached it was very likely that breach of peace will take place on the spot and for the possession of the disputed property the parties were very likely to take the law into their own hands and break their heads. He therefore in exercise of the powers vested in him under Sub-section (4) of Section 145 Cr. Pr. Code attached the property in dispute.

(3.) It was contended by Mr. Salaria appearing for the petitioners that the impugned order suffered from a number of infirmities and because of these it should be quashed and the properties released from attachment. His first contention was that it was incumbent on the learned Magistrate to have issued a notice to the opposite party and heard the parties before coming to the conclusion that the dispute was of an emergent nature and therefore, the property had to be attached under sub-section (4) of Section 145 Cr. Pr. Code. According to him failure on the part of the Magistrate to issue such notice to the opposite party resulted in violation of the principles of natural justice and also a well settled principle of law Laid down by this court with regard to the attachment under sub-section (4) of Section 145 Cr. Pr. Code has been ignored. His next submission was that provisions of Section 145 Criminal Pr. Code were applicable only when dispute existed between the parties with regard to some immoveable property. His submission was that no moveable property can in law be attached under the provisions of Section 145 Cr. Pr. Code. He contended further that as moveable property also had been ordered to be attached, this fact alone was sufficient to vitiate order passed by the Magistrate on 11-11-1976. The learned counsel next contended that the impugned order directing the parties to refrain from interfering in the subject matter of dispute till the proceedings were concluded, was a direction in the nature of a temporary injunction and thus could not have been given in proceedings u/s 145 Cr. Pr. Code-