1 Puran Ram vs. State of Rajasthan & Ors. S.B. CRIMINAL REVISION PETITION NO.398/2009 DATE OF ORDER : 19th May, 2009 HON'BLE MR. JUSTICE MANAK MOHTA Mr.Vineet Jain, for the petitioner. Mrs Raj Lakshmi , Public Prosecutor. Mr.Mahesh Bora ] for the respondents. Mr.Sunil Joshi ] The present revision petition has been filed by the accused petitioner against the order dated 02.04.09 passed by the learned Additional Sessions Judge, Parbatsar in Cri. Revision Petition No.32/2009, whereby learned Judge has set aside the order dated 13.03.09 passed by the learned SDM, Makrana in Cri. Misc. Case No.01/2009 whereby he had attached the alleged land under section 146(1) Cr. P.C. The brief facts of the case for the just disposal of this revision petition are that a petition was filed on 09.03.09 by 2 the petitioner before the learned SDM, Makrana, under section 145 Cr.P.C. stating therein that there is a likelihood of breach of peace with regard to disputed land situated at khasra No.714 measuring 4 bighas and 5 biswas, which was forwarded for enquiry to the SHO, Police Station Makrana. After usual completion of the enquiry, police filed a report on 12.03.09 under section 145 and 146(1) Cr.P.C. making the petitioner as party No.1 and the respondents as party No.2 , stating therein that there is a land situated in Khasra No.714 measuring 4 bighas and 5 biswas, out of which half of the portion was in the name and possession of late Devbux and after his death, the said land is in possession of his heirs. The alleged land is surrounded by Mine No.41/1, 41/1/A, 41/2 and 41/3 in the eastern side , land of Gems Marbles in western side and land of Shafi Mohammed in northern side. The petitioner , party No.1 claimed that he came in possession of the land, on the basis of a sale deed executed in his favour on 22.02.09 by heirs of late Devbux , namely, Jeevan Ram, Banshi Lal, Badri Lal and Jadav Devi. It was further stated that the land is surrounded by mines and therefore, the respondents , party No.2 want to grab the said land and alleged that they 3 are trying to make forcible possession over the same. It was also stated that with regard to this apprehension, earlier too on 24.02.09, party No.1 had made a complaint . It was further alleged that the respondents, party No.2, are obstructing the way and are preventing the users of the said way in approaching and peaceful using of the mines. On the basis of report, a prayer was made to initiate proceeding under section 145 Cr.P.C and considering the eminent breach of peace, a further prayer was made to attach the said property in dispute and receiver may be appointed. The learned SDM court , registered the complaint on 12.03.09 and proceeded further. The respondents Smt. Jaggu Devi and Ram Dev entered a caveat, therefore, the learned SDM court , after hearing the parties vide order dated 13.03.09 passed an order of attachment of the said land in dispute, shown in yellow colour in site plan and appointed receiver, SHO, Makrana . He further directed that the public way marked in site plan 'x' be maintained opened for the use of public. 4 Being aggrieved by the said order, the respondent- party No.2, filed misc. petition No.456/09 under section 482 Cr.P.C. before this Court, which was decided vide said order dated 23.03.09, with liberty to the respondents to file first revision before the concerned Sessions Judge. Thereafter, the respondent-party No.2, filed the revision petition before the learned Additional Sessions Judge challenging the legality and correctness of the order passed under section 145 and 146 (1) Cr.P.C., which was partly allowed while quashing and setting aside the order of attachment vide order dated 02.04.09 and case was remitted back to SDM court to proceed in accordance with law. Being aggrieved by the aforesaid order dated 02.04.09 passed by the revisional court, the petitioner, party No.1 in main proceeding, has preferred this revision petition before this court. Notice of this revision petition was given to the respondents, record of the case was called and arguments were heard. During the course of arguments, learned counsel for the 5 accused petitioner submitted that the learned Additional Sessions Judge has not properly considered and appreciated the material available on record and erroneously quashed the order of attachment. It was submitted by the learned counsel for the petitioner that the scope of revision was limited. The learned revisional court should not have disturbed the order of attachment, when that has been passed after thorough application of mind, by the learned SDM. In support of his contention, he also cited the judgment given by this Court in Mahaveer Prasad vs. The State of Rajasthan & Ors. [1990 Cr.L.R.(Raj.)759]. Learned counsel for the petitioner further submitted that the impugned order is a compound order, passed under section 145 and 146 Cr.P.C. and a compound order can be passed by the concerned court. The learned SDM has properly applied his mind and after considering the facts and the reports made by the police, firstly came to the conclusion that there is likely hood of breach of peace, with regard to immovable property, therefore, the learned SDM has ordered to register the case. Thus, virtually he has applied his mind to pass an order under 6 section 145 Cr.P.C. The order of attachment has been passed thereafter. It was stated that there was no need to pass two separate orders. From the perusal of the impugned order, it can easily be inferred that the learned SDM was conscious about the provision of law. It was also urged that as the caveat has been filed by the opposite party, therefore, separate notice was not needed to be issued. Though hearing of opposite party at th at stage was not necessary, but learned SDM , after hearing the parties has passed an order of attachment and appointment of receiver, considering the facts of the case. That order was not suffering from any illegality or irregularity and the revisinoal court should not have interfered in that order. Again that order was passed on the judicial discretion that should not have been quashed. The learned revisional court has not considered the facts on merit but simply on the technical ground that notice under section 145 Cr.P.C., has been passed prior to passing of order under section 146 (1) Cr.P.C., therefore, the impugned order has been quashed. The learned SDM , in fact, has passed the order under section 145 Cr.P.C., prior to passing of order under section 146 Cr.P.C. through a composite order. In support of his contention, he also relied on 7 the judgment given by the Division Bench of this Court in Asgarali Shabab & Anr. vs. The State of Rajasthan & Anr. [1985 Cr.L.R. (Raj.) 357], in which it was held that that Magistrate can pass composite order under section 145 and 146 Cr.P.C. On the basis of aforesaid submission, a prayer was made to quash and set aside the impugned order of revisional court and revision may be allowed. On the contrary, learned counsel appearing on behalf of respondents, refuted the contention placed by the learned counsel for the petitioner and supported the order of the revisional court. Learned counsel appearing on behalf of respondents submitted that in this case, the learned SDM directly has passed an order of attachment and appointment of receiver , without passing proper order and notice under section 145 Cr.P.C. Therefore, learned SDM was not having jurisdiction to pass such an order of attachment. For that, first he has to pass an order under section 145 Cr.P.C. It was also contended that there must be separate order under section 145 Cr.P.C. , 8 known as preliminary order, thereafter, order under section 146 Cr.P.C. , if any required, may be passed. But in this case, as it has rightly been observed by the revisional court, that the learned SDM has not passed order under section 145 Cr.P.C. , therefore, the order passed by the learned SDM, with regard to attachment of property was not sustainable at all. Learned counsel appearing on behalf of the respondents, also submitted at length the contention with regard to merit of the case and submitted that the revenue litigation was already pending before the parties and there was no occasion to initiate the proceeding under section 145 Cr.P.C. Therefore, attachment and appointment of receiver, was not required. The learned SDM, while passing the said orders, has not appreciated the material placed, along with the caveat and empty hearing formality has been observed. Even at that stage, all the parties were not heard. Therefore, the order of the learned SDM, was not sustainable. From the perusal of the order of SDM, it has not been established that notice under section 145 Cr.P.C, was first ordered to be issued. The learned revisional court has rightly quashed the 9 impugned order. There is no illegality or irregularity in the said order. Learned counsel for the respondents, in support of his contention, cited judgments given in Mathuralal v. Bhanwar Lal & Anr. [AIR 1980 SC,242, Nathi v.Patori [1981 Cri.L.J. (Raj.) 1833, Mohd. Nazir & Ors. vs. Mohd.Ashraf & Ors. [1990 Cri.L.J., 617], B.G.Thimmappaiah & Ors. vs. Gurusiddappa & Ors. [1977 Cri.L.J.,1544],Kottarathil Mavunni and anr. vs. State of Kerala & Anr. [1982 Cr.L.J. , 468], Banney v. Ramesh Chandra & Ors.[1983 Cri.L.J. 18], and Gulab Singh & Ors. vs. State of Rajasthan & Ors. [1987 Cr..L.J. 495]. On the basis of aforesaid submissions, a prayer was made to dismiss the revision. I have considered the rival submission and perused the order of revisional court, as well as the order passed by the learned SDM. In this case, the learned Sessions Judge has not considered the case on merit, but from the perusal of the order of the learned SDM , came to the conclusion that notice under section 145 Cr.P.C. , before issuing order under section 146 10 Cr.P.C. , has not been passed and on that count , the learned revisional court had quashed the impugned order and remitted the matter back to the learned SDM, for doing the needful. In this respect, I have considered the contentions raised by the petitioner's side. I agree to this extent that a composite order can be passed. But looking to the order of the learned SDM, it is not made clear that any order under section 145 (1) Cr.P.C., known as preliminary order, has been passed. Merely, the learned SDM has mentioned in his order that case be registered. The learned SDM was not very much conscious, while passing the the requisite order under section 145 Cr.P.C. , before passing the order under section 146 (1) Cr.P.C., it must be borne out from the record that , before passing order under section 146 (1) Cr.P.C., the concerned authority has applied his mind and proceeded under section 145 Cr.P.C. Because the very jurisdiction for passing the order under section 146 Cr.P.C. , emerges by the prior order passed under section145 Cr.P.C. In this respect, the authority cited by the learned counsel for the petitioner in Asgarali Shabab's case (supra) support the conclusion. The relevant portion is quoted as under :- 11 “ 14. We, therefore, conclude that the Magistrate can pass composite order of attachment on disputed property under section 145 (1) Cr.P.C. but such an order is only valid in the following circumstances: (a) The order under section 145 (1) should be separately drawn than the order under section 146 (1) Cr.P.C. b) That the order under section 145 (1) must precede order under section 146 (1) Cr.P.C. (c) It must be borne out from both the orders that they satisfy separately the existence of the conditions for drawing such orders under the two sections. “ I have also perused the judgments cited by respondent's side. In number of cases, it has been observed that Magistrate, passing the order of attachment of subject matter of the dispute, on the ground of emergency, 12 without drawing up preliminary order under section 145 (1) Cr.P.C., the order was not held sustainable. The relevant portion of judgment given in Gulab Singh's case (supra) reads as under :- “5.Needless to say that when the Executive Magistrate wants to take preventive action under S.145 Cr.P.C. he should draw an order under sub-sec. (1) which is commonly known as preliminary order. Such a preliminary order should contain the particulars that the Magistrate was satisfied as to the existence of a dispute likely to cause a breach of peace, the grounds of his satisfaction and a direction requiring the parties concerned to attend his Court on a date fixed by him and put in evidence (sic) the written statement of their claims in respect of the fact of actual possession of the subject matter . The law does not prescribe that such a preliminary order should be in any particular form. It is the substance of the order which matters and not the language in which it has been drawn up. Where there is a preliminary order fulfilling these requirements, it does not become bad in law simply because it has not been happily worded. The importance of the preliminary order need not be stressed. A 13 Magistrate can proceed to decide the dispute under S.145 Cr.P.C. only when he has drawn up the preliminary order under sub-sec. (1) . In the absence of the preliminary order, the subsequent proceedings, e.g. the attachment of the subject of dispute on the ground of emergency are without jurisdiction and erroneous in law.” In Banney's case (supra), wherein it has been observed that proceeding under sections 145 and 146 Cr.P.C. , in case where no preliminary order in the manner laid down under section 145 Cr.P.C. has been passed, then the order passed under section 146 Cr.P.C. is invalid. In B.G.Thimmappaiah's case (supra), it has been observed that in a case where preliminary order is not passed, the very order of attachment and appointment of receiver shall be vitiated. In Nathi's case (supra ) it has been observed that in absence of order under section 145 Cr.P.C. the order of attachment is illegal. Thus, considering the submissions made by both the sides and after perusing the principles laid down in the aforesaid judgments, I do not find any irregularity or illegality 14 in the order of the revisional court. The present revision petition is not sustainable and the contentions raised by the petitioner 's side are not having any force. In the result, the revision petition is dismissed and the impugned order is maintained. (MANAK MOHTA), J. l.george