1976 Supreme(Raj) 145

Rajasthan High Court
Sharma, J.
Ram Avtar - Appellant
Versus
Dhan Raj - Respondents
S.B. Criminal Revision No. 280
Decided On : December 03, 1976

Headnote:Criminal P.C. Old, sec, 145(3) — Ordering parties to show cause copies of which duly affixed at prescribed premises is preliminary order though it may not be in proper form.(b) —Criminal P.C., sec. 146(1)—Relevant date for determining of possession is date of Prelioninery order and not date of attachment Civil Court deciding possession with relevance to date of attachment— Order quashed.

       From a bare perusal of this order, it appears that the Sub-Divisional Magistrate first gave a gist of information which he received from the police. Thereafter he thought it proper to issue notice to the parties to show cause why further proceedings should not be taken after attaching the land in dispute.

       Apart from issuing notices to the parties, the Sub-Divisional Magistrate complied with the provisions of sub-sec. (3) of S. 145, old Cr.P.C. by causing a copy of the order dated 18-7-1970 to be affixed to some conspicuous place at or near the subject of dispute, as is evident from the endorsement made by the serving officer and the Station House Officer on the copy of the duplicate notice on 26-7-70 and 27-7-70. The referred-to above contents of the notice leave no doubt in my mind that the order passed by the Sub-Divisional Magistrate on 18-7-1970 was a preliminary order and the fact that it was not passed in a proper form and was not complete in some respects would not be sufficient to hold that no preliminary order was passed on 18-7-1970. (Para 7 & 8)

       The Sub-Divisional Magistrate passed an order for interim attachment of the land in dispute and for appointment of the Tehsildar, Jaipur, as a rceiver thereof. In this order dated 7-10-1970 the Sub-Divisional Magistrate has merely mentioned that there existed an Imminent danger of breach of the peace and that it was necessary to attach the subject of dispute pending his decision under S.145, Cr.P.C. Had this order dated 7-10-l970 been a preliminary order, its copy would have been published by being affixed to some conspicuous place at or near the subject of dispute and the parties would have been required to adduce evidence in proof of their respective claims as regards the fact of actual possession of the subject of dispute. Consequently, I have no hesitation in holding that the order passed fay the Sub-Divisional Magistrate on 18-7-1970 was a preliminary order.

       The wordings "and forward the record of the proceedings to a civil court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute to the date of the order as explained in sub-section (4) of S. 143, Cr.P.C. used in sub-sec. (1) of S 146, Cr.P.C. clearly indicated that the matter could be referred to a civil court for decision on the question of possession with reference to a specific date or point of time, i.e. the date of the preliminary order or within two months immediately preceding it.

       The civil court in this case gave a finding that Dhan Raj Duggar party No. 1 was in possession of the land in dispute on the date of attachment i.e. on 7-10-1970. The civil court did not determine the possession as on the date of the preliminary order or within two months immediately preceding it. The error was committed because the Sob-Divisional Magistrate in his reference dated 29-4-1972 requested the civil court to determine possession with reference to the date of attachment. This error has undoubtedly resulted in prejudice to the parties and has vitiated the entire proceedings because the enquiry as to possession was conducted with reference to a wrong specific point of time, i. e., the date of attachment and the possession was not determined as on the date of the preliminary order. (Para 9, 10 & 11 )