IN THE HIGH COURT OF CHHATTISGARH ATBILASPUR Cr.M.P. No. 0^5 Z- /2011 r PETITIONERS Non applicant <^1 I'L.-r-- [^^^M^-' K^,^4^-i- Applicant : 1) Sahdeo S/o Shri Ram Singh, aged about 50 years, 2) Bahadur S/o Ram Singh, aged about 35 years, , 3) Kewal S/o Sahdeo, aged about 25 years, All are resident of Village Salhi, Tahsil Manendragarh, District- Korea(C.G.) VERSUS : Sumanlata W/o Sudhir Pathak D/o Pawan Kumar Sharma, R/o Ward No. 5, Manendragarh, District Korea (C.G.) PETITION UNDER S^CTIQN 48€OF T^ CRIMINAL PROCEDURE HIGH COURT OF CHHATTISGARH : BILASPUR S.B. : HON'BLE SHRI MAMNDRA MOHAN SHRIVASTAVA^J, Cr.M.PNo.252/2011 PETITIONBRS Sahdeo & Ors. Versus Sumaalata (Petition u/S 482 ofthe Cr.P.Cj Shri Shakti Raj Sinha, counsel for the petitioners. Shri Parag Kotecha, counsel for tlie respondent. {Passedono.9.2011) Heard. 2. This petition under Section 482 of fhe &.P.C., has been flled by the petitioners assail:mg the correctness and validity of order dated 31st March, 2011 passed by tlie revisionai Coi.irt, whereby the order dated 26.8.2010 passed by f'ne Su'b Divisional Magistrate, directing attachrnent, has been aBinned. 3. The sole ground of chaUenge to fhe impugned orders passed bv the Magistrate and the Court below is tliat unless a prelimmar\r order in terms of Section 145 (1) of the Cr.P.C. is passed by the Magistrate, power of attachment under Section 146 (1) of the Cr.P.C. could not be invoked. . Leamed counsel for the petitioner submits that in the present case, the Ma.gistrate has passed the unpugned order dated - 7 - 25.8.2008, wlaich does not ftdfiU tlie statutor^' requirenient of passing pretanman' order in tenns of -Section 145 (li of Cr.P.C. He siibmits that (he order nowhere records in writing the grounds of satisfaction that a dispute is likely to cause a breach of peace exists conceming the property in dispute. In support of his submissions, leamed counsel for fhe petitioner relied upon fh.e decision of tlie High Court. of Madhya Pradesh in tfae case of RamaVs. Pyarji1 and thejudgments passed bj' the Hig^i Court. of Madra.s m. the case of Janaki Raincbandran & Ors. Vs. The State2 and in the case ofPeria Maanadha Gounder Vs. Marappa Gouader3. In his submission, fhe unpugned order passed by the Magistrate is clearly in excess of jurisdiction conferred on him under fhe law and is therefore Ilable to be set aside. Leamed counsel for fhe petitioner also snbmits that. as the entire proceedings have been drawn without passing any preljjamart7 order as required under Section 145 of the Cr.P.C., the proceedings itsetf be quashed as the same is abuse of the process of law. !. On fhe other hand, leamed counsel for the respondent subniits that a perusal of fhe order dated 26.8.2010 shows that the Magistrate himself had inspected the spot and therefore such inspection, followed by an order of attachment, substantiaUy complies wifh the requirement of passing a prelinunary order m terms ofprovision contained m Section 145 (1) offhe Cr.P.C. ' JLJ 1983 ShortNote (-7) Pg.8 21989 CM. L.J. 590 (Mad.) 3AIR1969Mad.411 >e»| 7.1 •I •^ iy ,--% A .1 / .] T^ (&• Next submission of leamed counsel for the respondent is that fhe petitioner has omy chaUenged the order dated 26.8.20 10, but tfae subsequent order, by which, fhe attachinent was conttaued till the final adjudication of the case has not been subjected to challenge either before fhe revisional Court or before this Court and, therefore, fhe present petition is not maLatainable. Leamed counsel for the respondent fhen submitted that suice the order has been passed way back on 26.8.2010, instead of inT.erieriiig with the order of attaehiuent, considermg the nature of dispute between fhe parties, the Magistrate may be directed to nnally dispose of the matter, withiu a time franie. 6. Power of attachment has been conferred on the inagistiate under Section 146 of fhe Cr-P.C. A bare reading of the proviston would show fhat tf fhe Magistrate, at. any tmie aft.er making the order under sub-sectionf 1) ofSecUon 145 ofthe Cr.P.C., considers fhe case to be one of emergency, or if he decides that none of fhe parties was fhen in such possession a.s is referred t.o m. Section 1.45, or if he is unable to sat.isft' himsetf as to which of fhem \''as then m. such possession of fhe subject of dispute, he may attach fhe subject of dispute until a competent Court has determined the rights of the parties thereto witli regard to the person entltled to the possession fhereof. A pen-isal of ffae aforesaid provision clearly shows fhat power of at.tachment had been made subject to an uaportant rider and a pre-condition for exercise of such uower r":::.^' ^Sh ri ssssss' -4- aad that is - after making the order under sub-section 11) of Section 145. Under the statuton' scheme engrafted under Section 145(1) ofthe CT.P.C., aa Executive Magistrate is requtred to make an ord.er in writing, stating fhe grounds of his being satisfied from a report of a police officer or upon ofher infonnation that a dispute likely to cause breach of the peace exists conceiTung anv land or water or fhe botmdaries thereof, withm his local jiirisdiction. He may fhen require the parties concemed in tl-se dispute to attend his Court and put m written statements in their respective claims as respects fhe fact of actual possession of tlie subject of dispute. Therefore, fhe Magistrate is under an obligation to make aa order m writing as requh'ed under Section 145 (1) of ttie Cr.P.C., fhereby passing a prelimmar)' order before embarldng upon an inqnin' under Section 145 of Cr.P.C. The pre- condition of passing an order iinder Section 145 (1) of the Cr.P.C. is a sine-qua-non for exercise of power of attachment confeiTed under Section 146 (1) of the Cr.P.C.. Power of attachment of unmovable property is a drastic power conferred on Executive Magistrate. The legislative scheme of putting a pre-condition for exercise of such power is therefore, necessarily, a mandaton' condition and cannot be termed to be a director^r provision. The effect of the order of attachment is that a part^r, who may be in possession, is deprived of the possession and enjoyment of property tiU fhe matter is finally decided by £heMagistrate under proceedings ofSection 145 ofthe Cr.P.C. Therefore, looklne to the scheme of provision contained ia Section 146 of the Cr.P.C., the pre-condition, that the power of attachment is exercisable only ««( ,.. .;j '-1 •^ l^ after making an order under Section 145 (1) of the Cr.P.C., is mandatory, non-compliance of which would render an order of attachment iUegal, betng in excess ofjurisdiction. 7. Next issue which arises for consideration is as to whether the aforesaid pre-condition for exercise of power of attachment has been complied with or not by the Magistrate before passtng an order of attachiuent. The order of attachment dated 26.8.2010 shows that fhe Magistrate had gone on fhe spot and made an inspection.AU fhat has been written in the order is that "3^°r ^T R'ocfr';") ^ ~^P ?n?(^F 3n^5T •5TFft ^? ^f 3TT^5T ^OTft ?f;. The order says - preliminar}? order be passed and order of attachment be issued. It is bei'ond aU comprehension as to how such order could be passed by the Magistrate. The preluninary order is required to be passed by the Magistrate. The order of the Magistrate that preUminars-' order be passed, clearly shows that at fhe time of passuig the order of attachment, the Magistrate was compietely oblivious of the requirement of passing of preliminary order as required iinder Section 145 (1) of ttie Cr.P.C.. The order nowhere records any ground of satisfaction that there exists a dispute which litely to cause breach of peace concemtng any land or water or fhe boundaries fhereof. The order, to say the least, is most ciyptic and hardly fuHils the statutory reqiiirement ofmaking an order tn [ writing, stating the grounds of satisfaction required under the law. The order of attachment, therefore; is apparently in excess ofjurisdiction. ie»| l?.l •.•"s^ ^ 1) p 8. The submission of learned counsel for fhe respondent fhat fhe petitioner has not challenged subsequent order dated 28.8.2010, deserves rejection, because the subsequent order has been passed on fhe basis of and in continuation of order dated 26.8.2010, which itself has been found by thjs Court to be in excess ofjnrisdiction and illegal. 9. The last submission of leamed counsel for the respondent that mstead of interfering with the order of attachment; fhe proceedings itself may be dlrected to be disposed of, deserves to be rejected, fhough in part. Having found that the order of attachment is grossly illegal and in excess of power conl'erred tinder tfae law amounting to the abuse of the process of law, tliis Court would be faUing in its duty if the order is not interfered with. Therefore, fhe order is required to be set aside by declarini it to be illegal. 10. Consequenfly, fhe tmpugned orders dated 26.8.2010 passed by the Magistrate and order dated 31st March, 2011 passed by the Court below tn revision, directing attachment of the property are declared illegal and hereby set aside. 11. I find that without there being any prelimmary' order, as required under Section 145 ofthe Cr.P.C., tlie Magistrate has proceeded to \ pass order and fhe proceedings are also pending. All proceedings before the Magistrate subsequent to 26.8.2010 are therefore \ declared illegal. It would be open for the Magistrate to consider & ( 17. i '.'•ss{ ,-^ •1< ^ Rt'i^^ /•• - '^* ,<RMS .^ ^"-», aSpnf eAeiseAMiis ueifow ejpuiuew -/PS sqj^ •J3 ^jo ffloojo ,d^arjo ^n ... _„ B ^ P»'n,»ZTlTO:'I"°o<'tBnom9JO 'd fes SB «s^^__ . "" '<f ^.^^IZ"lro.tfap a" ""m ' 3m m p31^ st ^ ^urp.oooy .„ '3?qBUOSB3JSI^o^p^p^ ~-—^'z-:.~7^r_ z^—^^r:::- m—JO—=;T^:e; • L-