The Sub-Divisional Magistrate must conduct a mandatory inquiry into actual possession under Section 145(4) of the Cr.P.C. before passing final orders; interim attachment under Section 146 cannot substitute the final determination of possession.

Order

1. By way of filing the instant petition, a challenge has been led to the impugned judgment dated 26.07.2017 passed by the Court of Sub-Divisional Magistrate, Dudu, District Jaipur in Complaint Case No. 01/2017, by which the complaint submitted under Section 145 Cr.P.C. by the respondent was accepted & directions were issued to attach the subject land and the Tehsildar, Dudu who was appointed as Receiver on the subject land and directed him to auction the crops and deposit the amount so received by him.

2. Aggrieved by the aforesaid a revision petition was submitted by the petitioners before the Court of the Additional Sessions Judge Dudu, District Jaipur. However, the same was rejected vide order dated 03.06.2019.

3. Learned counsel submits that while passing the impugned order dated 26.07.2017, no inquiry was conducted by the Sub- Divisional Magistrate and the said order has not been passed, as per the provisions contained under Section 145 Cr.P.C. rather the same has been passed as if an application under Section 146 Cr.P.C. was being decided by the learned Sub-Divisional Magistrate. He further submits that the subject land cannot be kept with the Receiver for an indefinite period and the final orders are required to be passed, strictly in accordance with the provisions contained under Section 145 (4) Cr.P.C. Hence, under these circumstances interference of this Court is warranted.

4. Per contra learned counsel appearing on behalf of the respondents opposes the arguments raised by counsel for the petitioners and submits that the petitioners appeared before the Court of the learned Sub Divisional Magistrate, Dudu through their counsel who failed to produce any evidence in their defence and submitted that instead of leading evidence in defence, he would rather argue the matter finally. Hence, hearing the arguments of both the sides, the order impugned has been passed which does not suffer from any illegality. He further submits that the order passed by the learned Sub Divisional Magistrate, Dudu has been upheld by the Revisional Court by passing a reasoned & speaking order dated 03.06.2019. Hence, under these circumstances interference of this Court is not warranted. In support of his contentions he places reliance upon the judgment passed by the Allahabad High Court in the case of Ram Shanker Tewari & Anr. Vs. The State & Ors. reported in 1970 CriLJ 770

5. Heard and considered the submissions made at the Bar and perused the material available on record.

6. Perusal of the record indicates that a complaint under Section 145 Cr.P.C. was submitted with regard to the subject land before the Court of the Sub Divisional Magistrate Dudu, District Jaipur on the basis of the report furnished by the SHO, Police Station Dudu, District Jaipur. It appears that notices were issued to the respective parties and thereafter , few parties appeared and some chosen not to appear, hence, ex-parte proceedings were initiated against those who failed to appear before the learned Sub-Divisional Magistrate. It appears that the petitioners were represented through their counsel who refused to produce any evidence and wanted to argue the matter finally and on the basis of the arguments made by the rival sides, the order impugned has been passed and a direction has been issued to keep the subject property with the Receiver, appointed by the Court below i.e., Tehsildar, Dudu and he has been directed to auction the crops and deposit the am