RAJENDRA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This revision petition is directed against the order passed by the learned Sub Divisional Magistrate, Raisinghnagar by which he exercising the powers under the proviso of section 146(1) of the Code of Criminal Procedure withdrew the order of attachment passed by him in the proceedings pending in his Court under Sec. 145 of the Code of Criminal Procedure.

(2.) Briefly stated the facts of the case giving rise to this revision petition are as under : Hanuman Singh father of non-petitioner No. 3 filed a complaint in the police to the effect that there was an agreement to sale, executed on April 22, 1969 between Virendra Singh (Pretty No. 1 non-petitioner) and Rajendra Singh (Party No. 2-petitioner). That in pursuance of that agreement Rajendra Singh made a payment of Rs. 22,000.00 to Virendra Singh. The possession of land was handed over to Rajendra Singh and Virendra Singh authorised Hanuman Singh to execute the sale-deed on his behalf. Hanuman Singh used to look-after and cultivate the land in question on behalf of Rajendra Singh as the latter was out in Navy service. The grievance of Hanuman Singh was that Virendra Singh wanted to take advantage of the position of the sale deed not being registered and therefore, committed criminal trespass on the land in question and threw away the articles lying there. Hanuman Singh filed a complaint under section 379, 147 and 149 Indian Penal Code against Virendra Singh and others. Police apprehending the breach of peace in connection with the disputed land initiated the proceedings under section 145 of the Code of Criminal Procedure in the Court of Sub-Divisional Magistrate, Raisinghnagar, on Aug. 22, 1980. The learned Sub-Divisional Magistrate, Raisinghnagar in view of the facts and circumstances of the case drew a preliminary order under section 145(1) of the Code of Criminal Procedure and attached the land. The Tehsildar Anoopgarh was appointed receiver by the learned Sub Divisional Magistrate on the same date. Meanwhile, Virendra Singh obtained an injunction order from the Assistant Colonisation Commissioner, Anoopgarh in his favour. Virendra Singh challenged the order of attachment passed on Feb. 28, 1980 in the Court of Additional Sessions Judge, Raisinghnagar by filing a revision petition. The learned Additional Sessions Judge, by the order dated March 27, 1980 rejected the application. Gulab Singh son of Hanuman Singh has filed an application before the learned Sub-Divisional Magistrate on April 21, 1980 praying therein that as the whereabouts of his father Hanuman Singh were not known for a pretty long period, he may be permitted to contest the case and lead evidence on behalf of Hanuman Singh. That application was rejected by the learned Sub-Divisional Magistrate on April 24, 1980. On Aug. 19, 1980 Virendra Singh submitted an application that as Hanuman Singh was absent for a long time from his residential village and Rajendra Singh was in Military Service, there was no likelihood of any breach of peace and therefore, the order of attachment of disputed land may be withdrawn and the proceedings under section 145 of the Code of Criminal Procedure be dropped, Rajendra Singh filed an application in the Court that on coming to know about the proceedings regarding the Land in question he had appeared and therefore, he may be permitted to participate in the proceedings. The application of Rajendra Singh was allowed. However in view of the facts and circumstances of the case, the learned Sub-Divisional Magistrate by his order dated Oct. 28, 1980 Annexure-9 withdrew the attachment and directed the receiver to hand over the possession of the land in dispute to Virendra Singh. In compliance to that order Virendra Singh was put possession of the land on Oct. 28, 1980. It is in grievance with the order Annexure-9 dated Oct. 28, 1980 withdrawing the attachment, that Rajendra Singh has invoked the revisional jurisdiction of this Court.

(3.) It has been strenuously contended by Mr. S K. Goyal, learned counsel for the petitioner that once the Court arrived at a conclusion that there was likelihood of breach of peace and passed the order under section 146(1) of the Code of Criminal Procedure, there was no justification in withdrawing the order of attachment, especially in the circumstances of the case when proceedings under section 145 of the Code of Criminal Procedure were still going on and Rajendra Singh, the person authorised to the possession of the land in pursuance of the agreement of sale executed between him and Virendra Singh has turned out and wanted to participate in the proceedings. That the learned Sub-Divisional Magistrate has not taken into consideration the report of the Deputy Superintendent of Police, apprehending the imminent danger of breach of peace and also the order of the learned Additional Sessions Judge passed on March 27, 1980 in the revision petition tiled by Virendra Singh, challenging the attachment order dated Feb. 28, 1980. Mr. Goyal further contended that unless there is any agreement between the parties to the proceeding, the Court concerned should not order for withdrawal of attachment and entrustment of possession to any one of them.