Brahm Pal vs State of Haryana & ors.

I.S. Tiwana, J.—The petitioner impugns the following order of Sub Divisional Magistrate, Jagadhri, dated July 2, 1986

"Preliminary order.

Police. Police Post Buria, has put in Calander u/s 145 Cr.P.C. in this Court, alleging that there can be breach of peace at any time between the parties over the land in dispute and requested for attachment of the suit land also ordering them to submit bail bond worth Rs. 10,000/, 10.000/ each. I have gone through the calander and heard the counsel for the parties. I am satisfied that there is likelihood of breach of peace between the parties over the suit land consisting of Khasra Nos. 401/15, 6, 15, 16, 25, 411/1, 10, 11, 20, 21, 46/11, 9/1, 4, 475/1 situated at V. Sugh H. B. No. 346, Teshil Jagadhri. 1. therefore, attach the suit land forthwith. Objection, if any. the parties are directed to appear before me in this Court in person or through counsel on or before 8.8.86.

Given under my hand and seal of the Court. today the 2.7.86.

Sd/

Sub Divisional Magistrate,

Jagadhri.

2.7.86."

On the face of it, it is a composite order under sections 145 (1) and 146 of the Code of Criminal Procedure. Challenge on behalf of the petitioners is that this order complies with none of the provisions as neither the Magistsate has recorded any grounds of his satisfaction which is incumbent upon him in terms of section 145(1) of the Code nor has he recorded any conclusion for invoking the provisions of section 146 which lay down that he can attach the property dispute only in three conditions, i.e. (i) if the Magistrate at any time after making the order under subsection (1) of section 145 considers the case to be one of emergency; or (ii) if he decides that none of the parties was then in such possession as is referred in section 145; (iii) if he is unable to satisfy himself as to which of them was then in such possession of the subject matter of dispute. The conditions mentioned at No. (ii) and (iii) obviously relate to the final stages of the case before the Magistrate. It is only under condition No. (i) that he can act at the initial stages of the case in case he finds it to be one of emergency. Besides this it is also not disputed between the parties that the claim with regard to the possesion of the disputed property is already pending between them as a result of the respective suits, i.e. Civil Suit No. 165 of 1986 and Civil suit No. 177 of 1986, filed by them. As a matter of fact, the Civil Court has stayed the proceedings in the latter mentioned suit under section 10 C. P. C, and their respective claims are being tried in the earlier suit i.e. No. 165. It is also not in dispute that in this latter mentioned suit the parties have been directed to maintain status quo with regard to the possession of the suit property. Having heard the learned counsel for the parties at some length, I find that the impugned order cannot possibly be sustained. I am in agreement with the learned counsel for the petitioners that this order on the face of it being composite order and not complying with any of the requirements of the two sections, i.e. 145 (1) and 146, is bad. Otherwise also I have ruled in Jaswant Singh etc. v. State of Punjab etc., 1987(1) Recent Criminal Reports 237 (Criminal Misc. Nos. 7314 to 7316 and 6949M] of 1986 decided on January 9, 1987) that in such a situation, when the parties are already before the Civil Court for the settlement of their claims, the only coarse open to the Executive Magistrate is to proceed under section 107 of the Code of Criminal Procedure if he is so advised.

For the reasons recorded above the impugned order has obviously to be set aside and is quashed.