IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Appln No. 567 0f 2004 Ram Cheej …Applicant Versus State of Uttaranchal and others …Opp. parties Mr. J. S. Virk, learned counsel for the applicant Mr. Nandan Arya, learned A.G.A. for the State/opp. party nos. 1 and 2. None appears on behalf of opp. party no. 3. Dated: December 07, 2009 Hon’ble Alok Singh, J. Present petition has been filed invoking jurisdiction of this Court under Section 482 of Code of Criminal Procedure to quash the orders dated 10.11.2004 under Sections 145(8) Code of Criminal Procedure and under Section 145(1) Code of Criminal Procedure passed by learned S.D.M., Rudrapur, district Udham Singh Nagar. Brief facts of the present case are that Inspector of Police Station Kotwali Kichcha submitted a report dated 06.11.2004 saying dispute between the parties is pertaining to harvesting of Paddy crops standing on field no. 93 and 94 of village Pratappur, Indrapur, police station and Tehsir Kichchha, district U.S. Nagar. Report further says that there is apprehension of breach of peace between the parties pertaining to the harvesting of the paddy crops and any severe incident can take place. Having perused the report submitted by the police station Kichchha, learned S.D.M., Rudrapur, district U.S. Nagar issued order under Section 145(1) Code of 2 Criminal Procedure on 10.11.2004 calling both the parties to submit their reply. On the same day i.e. 10.11.2004 learned S.D.M. passed order under Section 145(8) of the Code of Criminal Procedure directing Tehsildar Kichchha to handover the paddy crop in the custody of independent person. It was further directed to attach the property of Chak No. 93 and 94 in favour of the State Government. Feeling aggrieved by both the orders a revision was preferred before the learned Sessions Judge by the present petitioner. Revision petition came to be dismissed vide judgment and order dated 01.12.2004, hence, the petitioner has invoked jurisdiction of this Court under Section 482 of the Code of Criminal Procedure. Mr. J.S. Virk, learned counsel for the petitioner argued that question of title is involved and is pending between the parties before the competent consolidation court, hence once the question of title is pending before the competent court, proceeding under Section 145 is not maintainable. None present on behalf of respondent no. 3 despite of sufficient service. On 19.12.2007, 06.08.2009 and 17.08.2009, none was present for the respondent no. 3, although Mr. S.S. Yadav, Advocate on previous occasions had put in appearance on behalf of respondent no. 3. Hence, I have no option except to proceed with the case in the absence of counsel for respondent no. 3. Learned Magistrate while passing the order under Section 145(8) Code of Criminal Procedure had no 3 jurisdiction to attach the property in favour of the State. Attachment order can be passed under Section 146(1) of the Code of Criminal Procedure that too if Magistrate considers the case to be one of emergency, or if he is unable to decide which party is in possession. Learned Magistrate nowhere recorded the finding pertaining to any of the ingredients of under Section 146 (1) of the Code of Criminal Procedure. Learned Magistrate failed to record any finding prima facie as to why custody of crop was required to be given in the custody of the third person. To my mind neither ingredients of Section 145 (8) nor 146 (1) of the Code of Criminal Procedure were available before the Magistrate to pass impugned order attaching the property and giving the custody of the crop to the third party, hence, order purported to be passed under Section 145(8) is without jurisdiction and is liable to be set aside. Mr. J.S. Virk, learned counsel for the petitioner stated that question of title is pending before the competent court i.e. consolidation court, hence proceedings under Section 145 is not maintainable in view of the judgment of the Apex Court in the case of Amresh Tiwari Vs. Lalta Prasad Dubey and another reported in [2000 SCC (Cri) 806]. As yet the petitioner has not placed any document before the S.D.M. saying question of title is pending before any competent court. In my view the petitioner should produce document before the learned Magistrate saying question of title pertaining to the disputed property is pending before the competent court between the parties. 4 In view of the above, present petition is allowed. The impugned order dated 10.11.2004 giving custody of the crop in favour of the third person and attaching the property in question in favour of the State is quashed. Order dated 10.11.2004 passed under Section 145(1) of the Code of Criminal Procedure is not set aside, however, it is directed that the petitioner shall file a proper application before the learned Magistrate making a request to drop proceedings under Section 145 of the Code of Criminal Procedure with evidence saying question of title is pending before the competent court. If the learned Magistrate comes to the conclusion that question of title is pending before the competent court of jurisdiction between the parties he shall drop the proceedings under Section 145 of the Code of Criminal Procedure. The writ petition is allowed in the above terms. (Alok Singh, J.) VKG 07.12.2009