SANWATA RAM Vs. ASHA RAM

JUDGEMENT

(1.) THIS is an application filed by Sanwata Ram under Sec. 482, Cr. P. C. quashing an order of the Sub-Divisional Magistrate, Nagaur, dated 18th Drcember, 1975, by which he refused to withdraw he attachment of the land in dispute on the ground that after attachment of the subject of dispute in a case of emergency under sub-section (l) of Sec. 146, Cr. P. C. the has become functus officio and is not empowered to take further proceedings in the case under Sec. 145, Cr. P. C. The reason given out by the Sub Divisional Magistrate, Nagaur, for holding the above view is that the attachment of the subject of dispute subsists until a competent court determines the rights of the parties thereto with regard to the person entil laid d to the possession thereof It appears that in passing the impugned oder the Sub-Divisional Magistrate has relied up in an authority of this Court Umrao vs. Sheonarain (1) Sanwata Ram against whom proceedings under Sec. 145, Cr. P. C. were initiated, filed a revision-petitiion in the court of the Sessions Judge, Merta, who, after hearing the parties, dismissed the revision petition in a cursory manner. Hence, Sanwata Ram his invoked inherent jurisdiction of this Court for getting the impugned orders of the Sub-Divisional Magistrate, Nagaur an J the Sessions Judge, Merta, quashed by this Court.

(2.) I have carefully gone through the record and heard Mr. Ganpat Singh Mehta for the applicant and Dr. S. S. Bhandawat, Public Prosecutor, for the State. Asha Ram non-applicant did not put in appearance before tat d]espite service of no ice. It his been vehemently contended before me by the learned counsel for the applicant that the Sub Divisional Magistrate, Nagaur, and the Seesions. Judge, Merta, ignored the provisions contained in the provisio to sub-section (l) of Sec. 146, Cr. P. C. The provisio clearly 1ays down that the Magis-trate may with draw the attachment at any stage of the proceeding if he is sitis-fied that there is no longer any apprehension of breach of the peace with regard to the subject of the dispute. The learned counsel further submitted that the Sub Divisional Magistrate did not apply his judicial mind to the materials on the record to determine the question whether danger of breach of the peace with re-grad to the dispused land still persists or not. According to the learned counsel, the Sub-Divisional Magistrate misunderstood the law laid down in the referred to above authority of this Court and wrongly held on its basis that he was functus officio and powerless to decide toe application filed by the petitioner for withdrawal of the attachment Dr. S. S. Bhandawat, Public Prosecutor, appearing for the State, has no disputed the legal position taken-up by Mr. Ganpat Singh Mehta in his arguments. He frankly conceded before me that in view of the proviso appended to sub section (1) of S. 146, Cr. P. C. the Magistrate may, in his discretion, withdraw the attachment at any Stage of the proceedings, provided he has satisfied himself that there is no longer any apprehension of breach of the peace with regard to the property in dispute.