ASGAR ALI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a reference made to us by Hon'ble Chief Justice for answering the question referred to Division Bench by the learned Single Judge, Hon'ble Sharma J. The question referred to is whether a composite order of attachment of disputed property under section 146 Cr. P. C can be passed by the Magistrate while passing the preliminary order under section 145 (1) Cr. P. C?

(2.) THE aforesaid question arose in a revision petition filed against the order passed by Sessions Judge, Jhunjhunu, whereby he had partly quashed the order of Sub - Divisional Magistrate, Jhunjhunu, dated December 20, 1982 so far as the attachment of the property and appointment of receiver was made. THE learned Sub Divisional Magistrate had passed one composite order which was in two parts. In first part he had drawn a preliminary order as required by sec. 145 (1) Cr. P. C. and in the second part he had passed an order of attachment and appointed a receiver to manage the property. THE learned Sessions Judge while reversing the order of the Sub-Divisional Magistrate to the extent of it being one under section 146 (1) Cr. P. C. placed reliance on a decision of this court reported in Kishan Bihari Birla vs. Prem Kumari Bhati (1 ). A revision was filed before this Court which come up for hearing before Hon'ble Sharma J. His attention was drawn to the decision of Hon'ble Byas J. in Ram Prasad V. State of Rajasthan (2) and of Hon'ble Kasliwal J. in Girwar Dan Ram Prasad (3) Hon'ble Sharma J. had, already, in an earlier case cited above taken the view that a composite order under section 145 (1) and 146 (1) Cr. P. C. is illegal and it was this judgment which was relied on by Sessions Judge. Since Hon'ble Byas J. had taken the view that simultaneous order of attachment can be passed and there is no illegality in it so as to call for interference in revision petition and Hon'ble Kasliwal J. had taken the view that a composite order may validly be passed though it is appropriate if the Magistrate passes two separate orders and also that order under section 145 (1) Cr. P. C. must precede order under Sec. 146 (1) Cr. P. C. and further it must be clearly borne out from composite order that Magistrate was satisfied separately with regard to existence of conditions for drawing orders under two sections, therefore, Hon'ble Sharma J. in the instant case made a reference to the Larger Bench. This is how this reference has come up before us for answering.

(3.) SECTIONS 146 (1) Cr. P. C reads as under: "sec. 146 (l)-If the Magistrate at any time after making the order under sub-sec. (1) of Sec. 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. "