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1964 Supreme(Raj) 214
High Court Of Rajasthan
Judgename : L.N.Chhangani
MAHANT BHAGWANDAS - Appellant
Versus
SUGGAN - Respondent
Criminal Ref. 200 To 207 Of 1964
Decided On : 11/11/1964
Chandmal Lodha, H.M.LODHA, J.P.JAIN, L.K.SWAMY
A Magistrate's discretion in ordering attachment of property under Section 145, CrPC, should be exercised with great caution, and the Magistrate should clearly indicate how he considers a case of emergency justifying an ex parte attachment order.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 145 - ATTACHMENT OF PROPERTY - EMERGENCY - MAGISTRATE'S DISCRETION - PRINCIPLES TO BE FOLLOWED.
Fact of the Case:
The petitioner, Bhagwandas, filed eight revision applications challenging the orders of the Sub-Divisional Magistrate (SDM) under Section 145, Criminal Procedure Code (CrPC), for initiating proceedings and attaching agricultural holdings in three villages. The non-petitioners had alleged that Bhagwandas, along with others, tried to dispossess them from the holdings, leading to a situation likely to cause a breach of peace.
Finding of the Court:
The court held that the SDM's orders for attachment were not justified as he did not properly apply his mind to the determination of the question of emergency and passed orders in haste without calling the parties and giving them an opportunity to produce evidence and affidavits.
Issues: 1. Whether a Magistrate acting under Section 145, CrPC, can pass an order of attachment at the time of issuing a preliminary order without getting the preliminary order served on the parties? 2. The principles which should guide the Magistrate while acting under proviso 3 of Section 145(4), CrPC.
Ratio Decidendi: 1. The court interpreted the proviso to Section 145(4), CrPC, and held that a Magistrate can pass an order of attachment along with the preliminary order without it being first served on the parties, but only in appropriate cases and with sufficient care and caution. 2. The court laid down that a Magistrate, while passing an order of attachment, should clearly indicate how he considers a case of emergency and how he considers the emergency of such a nature that an ex parte attachment should be ordered without giving an opportunity to the other side whose interests are likely to be affected.
Final Decision: The court partially accepted the revision applications, set aside the SDM's orders for attachment, and directed him to reconsider the question of emergency after hearing both parties and considering all relevant materials.
L. N. CHHANGANI, J.
( 1 ) THESE eight references by the Additional District Magistrate, Alwar, should conveniently be disposed of by a common order.
( 2 ) THE facts in each of them are similar though not Identical. The petitioner in each of the references is Bhagwandas. The non-petitioners are different in each of the references. There is alleged to be a dispute between the petitioner and the non-petitioners as regards possession of some agricultural holdings in three villages. Each set of the non-petitioners submitted an application on 20th of July, 1963, for initiating proceedings under Section 145, Criminal P. C. It was alleged in these petitions that each set of non-petitioners had been in cultivatory possession of an agricultural holding and entries in the revenue record showed their cultivation in the samvat years 2018 and 2019. It was further stated that in respect of the cultivation of rabi crop of samvat year 2019 the Patwari had made entries in favour of the non-petitioners but the Quanungo made correction in the entries and substituted the name of the petitioner for the non-petitioners as holding the possession of the agricultural holdings. The non-petitioners had approached the Land Revenue Authorities for getting the entries rectified. According to each set of the non-petitioners, on 15th July, 1963, the petitioner bhagwandas along with fifty other persons went to each of the holdings and wanted to dispossess the non-petitioners and thus a situation was created likely to lead to the breach of peace. On these facts the non-petitioners prayed for proceedings under Section 145, Criminal P. C. On the same day, the Sub-Divisional Magistrate forwarded each of these applications to the Station House officer, Mundawar for enquiry and report. The Station House Officer sent reports saying that there were disputes between the parties likely to lead to breach of peace and recommended the initiation of proceedings under Section 145, Criminal p. C. It may be mentioned here that the Station House Officer did not forward with the report any papers relating to the enquiry held by him. The Sub Divisional magistrate, on 26th of July, 1963, after perusal of the petitions and the reports of the Police Officer thought proper to initiate proceedings under Section 145, criminal P. C. He passed preliminary orders as required by Section 145, Criminal p. C. and directed notices to the parties to submit their written statements as to their claims to actual possession as also to file documentary evidence and also evidence in the form of affidavits. While passing the preliminary orders, the Magistrate further observed that from the police reports it was clear that there was immediate danger of breach of peace between the parties on the spots and that the parties were ready on the spots to cultivate the lands. It was further observed by the Magistrate that the rainy season having set in and there being appropriate time for cultivation and consequently, he having expressed his full satisfaction with the police reports, thought it proper to direct attachments of the lands in dispute. On the same, day, the petitioner Bhagwandas submitted applications supported by four affidavits in each case opposing the orders of attachments and the learned Magistrate in all the cases passed orders suspending the operation of the orders of attachments. Later on, on 31st of July, 1963, the learned Sub Divisional Magistrate, passed one line orders directing the issue of warrants of attachments. In the meanwhile, the petitioner Bhagwandas submitted revision applications against the orders dated 26th of July, 1863 in the Court of Additional District Magistrate. The Additional district Magistrate accepting the revision applications has recommended that the orders of the Sub Divisional Magistrate dated 26th of July, 1963 should be set aside. According to him, both the preliminary orders and the attachment orders were bad in law. In support of the reference, t
