Bhagchand vs State of Rajasthan and Others

K.S. Sidhu, J.—This application u/s 482 CrPC is directed against a part of the order dated August 3, 1978 passed by the Learned Additional Sessions Judge, Gangapur City, where by the learned Judge directed that the attachment of two plots of land which were the bone of contention between the rival parties, would remain in operation until the Magistrate to whom the case was remanded, decided as to whether or not it was a fit case for further proceedings u/s 145 CrPC. It will be seen that the learned Addl. Sessions Judge has in the exercise of his revisional jurisdiction'' set aside the order of attachment passed by the learned Magistrate u/s 146 CrPC on the ground that such an order could be justified only if a preliminary order wider Section 145(1) CrPC has first been passed and that since no preliminary order as required by Section 145 (1) CrPC had been passed in this case, the order of attachment u/s 146 CrPC was illegal.

The petitioner''s contention in this application u/s 482 CrPC is that if the learned Magistrate could not pass an order u/s 146 CrPC before passing an order u/s 145(1) CrPC. The learned Additional Sessions Judge also could not by the same token pass such an order. Mr. Garg, the learned Public Prosecutor, agrees that the learned Additional Sessions Judge has passed an illegal order which cannot be justifiable defended by him. Mr. Girg has however, argued that cot withstanding the fact that this is an illegal order, this is not a fit case calling for interference by this Court in the exercise of its extraordinary power tinder Section 482 CrPC.

3 After giving the matter my careful consideration. I am of opinion that since the order passed by the learned Additional Sessions Judge is patently illegal, it can be legitimately presumed that the illegality, if allowed to stand, would frustrate the ends of justice. I would accordingly allow this application, set aside the order of the learned Additional Sessions Judge to the extent indicated above, and remove the attachment of the land in-dispute as ordered by him. I may however, at once make it clear that the learned Magistrate who is at present seized of the case will be free to decide, in the event he makes an order u/s 145(1) CrPC, whether or not to make the order of attachment under Section-146 CrPC