The main legal point established is that an attachment order should be based on a proper demarcation of shares in the property, and the court should not deprive joint-holders of their rights without proper justification.

H.R. Panwar, J.-By the instant criminal revision under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, “the Code” hereinafter), the petitioner has challenged the order dated 20.10.2005 passed by the Special Judge, SC/ST. (Prevention of Atrocities) Cases, Merta (for short, “the trial Court” hereinafter) in Criminal Misc. Case No. 31/2005, whereby the trial Court dismissed the application filed by the petitioner on the ground that the petitioner has not filed the partition deed showing that the accused had only 1/8 share in the property ordered to be attached under attachment order.

2. Succinctly stated, the facts of the case are that accused Kishan Lal, who is the son of the petitioner, has been declared absconder in Criminal Case No. 41/2004, State of Rajasthan vs. Babu Lal & Ors., and consequently proceedings under Sections 82 and 83 of the Code have been initiated against accused Kishan Kumar by declaring the accused as absconder and issuing warrant of attachment of the property of accused Kishan Kumar. Since, the attachment order has been issued in respect of Khasra No. 268 which is a joint property of the petitioner and his brothers and the petitioner is also having other sons and daughters, therefore, he moved an application for recalling the attachment order, which has been dismissed vide impugned order.

3. I have heard learned Counsel for the petitioner and perused the order impugned.

4. From a bare perusal of the impugned order itself , it is clear that while dismissing the application, the trial Court itself has held that no partition deed was filed before it and, therefore, according to the trial Court, it cannot be accepted that only 1/8 share of the property be attached and the revenue authorities would have no basis for attaching a part of the property. Thus, it is clear that the trial Court has passed order for attaching the whole property without there being partition of the property or demarcation of share of the accused. Even according to the trial Court, the accused had only 1/8 share in the joint holding and as such by attaching the whole property, the other seven joint-holders cannot be deprived of their right over the land attached. There is nothing on record to suggest that the accused had any right, what to say the sole right, over the property put under attachment order. In this view of the matter, the impugned order cannot be sustained and liable to be set aside.

5. Consequently, the revision petition is allowed; the impugned order dated 20.10.2005 passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Merta in Criminal Misc. Petition No. 31/2005 is set aside. However, it will be open for the trial Court to ascertain any other property which is in exclusive ownership and possession of the accused and put such property under attachment in accordance with law. The stay petition stands disposed of .