1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. CRIMINAL MISC. PETITION NO.1172/2010 (Shanker Lal Vs. State & Ors.) Date of Order : 10.08.2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Mukesh Vyas, for the petitioner. Mr. Anil Joshi, Public Prosecutor. Heard learned counsel for the petitioner. In this misc. petition filed under Section 482 Cr.P.C., the petitioner is challenging the order dated 21.7.2009 passed by Sub-Divisional Magistrate, Sardarsahar whereby an attachment order was passed on the basis of the complaint filed by SHO, Police Station Sardarsahar as well as the order dated 22.7.2010 passed by Upper Sessions Judge, Churu in revision petition filed by the petitioner. In the order dated 21.7.2009, the SDM issued notice to the petitioner under Section 145 (1) Cr.P.C., before that, passed an order for attachment of the land in question and SHO, P.S. Sardarshar has appointed a receiver upon the disputed land. 2 The contention of learned counsel for the petitioner is that there is power left with the SDM for attachment under Section 146 Cr.P.C. but at the same time he is required to record satisfaction if order of attachment is necessary and it is requirement of law to consider entire evidence and after recording satisfaction, the order of attachment can be passed. But in this case without recording satisfaction, the SDM passed impugned order dated 21.7.2009 for attachment of land in question and appointed SHO, Sardarsahar as received of the property in question, therefore, the order passed by the SDM is not in consonance with the provisions of law. As per learned counsel for the petitioner, the order dated 21.7.2009 passed by SDM was further challenged by way of filing revision petition before the learned Addl. Sessions Judge, Churu whereby the revisional Court while deciding the revision petition vide order dated 22.7.2010 upheld the order passed by SDM but at the time of deciding the revision petition, the revisional Court did not consider the judgment cited by the petitioner in right perspective and the facts of the case were also not taken into the consideration for the purpose of adjudicating the revision petition. Therefore, it is prayed that both the orders passed by SDM as well as by revision Court deserves to be 3 quashed and set aside because both the orders are not in consonance with the law. I have perused both the order passed by SDM as well as by revisional Court. It emerges from the facts that while issuing notice under Section 145 (1) Cr.P.C. to the petitioner, learned SDM observed in the order that there is apprehension of breach of peace, therefore, attachment is necessary and this finding is give on the basis of the complaint filed by the SHO, Sardarsahar. In my opinion, if the SDM has considered the complaint filed by the SHO and passed an order for attachment as per Section 146 of Cr.P.C. then there is nothing wrong in the order because there is proviso to Section 146 Cr.P.C. to withdraw that order at any stage if he is satisfied that there is no apprehension of breach of peace. In this view of the matter, at this stage, I am not inclined to interfere in the matter while exercising the power under Section 482 Cr.P.C. so also to assess the facts, which is incorporated by the petitioner in this misc. petition. Further, it is for the SDM, Sardarsahar to consider and decide the matter after providing opportunity of hearing to the petitioner. As per proviso to Section 146 Cr.P.C., there is remedy to file his reply and to raise his objections before the SDM but without appearing before 4 SDM, Sardarsahar, he has directly moved to the revisional Court and filed this misc. petition on the ground that before passing order under Section 145 (1) Cr.P.C., the SDM has not recorded satisfaction and did not give any reasons for passing order of attachment. In this view of the matter, I deem it just and proper to direct the petitioner to appear before the concerned SDM on 25.8.2010 and file his reply/application for vacating order of attachment and raise all objections with regard to not recording satisfaction before passing order of attachment. Upon filing such application in the proceedings, the SDM, Sardarsahar is directed to decide the said application within two weeks after providing opportunity of hearing to the petitioner. Till then, status quo with regard to the land in question shall be maintained. With the aforesaid observations, this misc. petition is disposed of. (GOPAL KRISHAN VYAS), J arun