BUDDHI Vs. GYANA

JUDGEMENT

(1.) Heard learned counsel for the parties. It is contended by the learned counsel for the petitioner that the grievance of the petitioner is that it was enjoined upon the learned Sub-Divisional Magistrate to initiate fresh proceedings under Section 145 Cr. P.C. against the petitioner in view of the fact that earlier in the year 1990 also the property which is subject matter of dispute was subject to the proceedings under Section 145 Cr. P.C. in which earlier an attachment order has been passed but was subsequently vacated by the Court on the ground that there was no breach of peace. In revision which was preferred against the order of the learned S.D.M. dated 18-9-1990, the said revision was dismissed by the revisional Court on the ground that since civil suits concerning the subject matter of the property were already pending before the competent Court for adjudication, there was no possibility of breach of peace and consequently on the basis of prima facie view of the case the revision petition was rejected by the revisional Court.

(2.) It is further contended by the learned counsel for the petitioner that subsequent to the earlier order fresh proceedings have been drawn up under Section 145 read with Section 146 Cr. P.C. and the order of attachment has been passed by the learned S.D.M. and a receiver has also been appointed by the Civil Court and at the moment the receiver has taken charge of the property pending the decision by the Civil Court. It is contended by the learned counsel for the petitioner that it was not proper for the learned S.D.M. to have drawn fresh proceedings under Section 145 read with Section 146. Cr. P.C. particularly when on previous occasion the same property was subject matter of dispute in which order was passed under Section 145 Cr. P.C. and which was vacated in revision by the revisional Court since there was no apprehension of breach of peace.

(3.) I have perused the impugned order, dated 20th September, 1994 passed by learned Addl. Session Judge which is impugned order in this petition. Perusal of the said order explicitly reveals that learned S.D.M. had passed the impugned order on the basis of his subjective satisfaction after drawing prima-facie view of breach of peace in the matter concerning the subject-matter of the property in dispute. It was keeping in view this aspect of the case that the learned S.D.M. had passed the order of attachment under Section 145 Cr. P.C. and in my considered opinion learned S.D.M. was within his full competence to pass the impugned order because in view of the changed circumstances, since on the basis of the report of the investigating agency and the law enforcing authority, i.e., police, it was brought to the notice of the Court that there is every likelihood of the breach of peace and in order to avoid a serious mishap it is necessary to pass the said order. Keeping in view this aspect of the matter the revision which was preferred against the impugned order, was dismissed by the revisional Court on 20th September, 1994.