BABU MISTRI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD Mr. B.M. Singhvi and Mr. M.L. Kala learned counsel for the petitioner and Mr. M.C. Bhoot learned counsel for non-petitioner No. 4 and Dr. S.S. Bhandawat Public Prosecutor for the State.

(2.) THIS is an application under section 482 Cr.P.C. for setting aside the order of the City Magistrate Jodhpur 5.10.82 and for quashing the notice given by the Tehsildar to the petitioner on 11.10.82 in pursuance of the aforesaid order of City Magistrate. From a bare perusal of the impugned order of the City Magistrate dated 5.10.82 it appears that he passed an order under section 146, Criminal Procedure Code in a proceeding initiated upon complaint by Akhtar Bai Hinzara against Babu Mistri petitioner and appointed Tehsildar Jodhpur a Receiver to take into his possession the property in dispute for management. It is not disputed before me that the learned City Magistrate passed the impugned order under section 146 Cr.P.C. without affording proper opportunity to the petitioner of being heard. It will not be out of place to mention that the impugned order was not passed at the time of drawing the preliminary order. It was passed after the parties had submitted their respective claims as respects the actual possession of the disputed property. At the time of passing such an important order as envisaged by section 146 Cr.P.C. the City Magistrate ought to have given an opportunity to the petitioner to submit his objections and to lead his evidence. In this view of the matter, the impugned order passed by the City Magistrate under section 146 Cr.P.C. on 5.10.82 and the notice of the Tehsildar given in pursuance thereof are quashed and the case is sent back to the City Magistrate for passing an appropriate order after hearing the parties and after taking down their evidence if any. The petition under section 482 Cr.P.C. is decided accordingly. Order accordingly.