Jai Singh vs State of Haryana

I.S. Tiwana, J. (Oral)

The petitioner impugn not only the very initiation of the proceedings against them under Section 145(1) of the Criminal Procedure Code on a wide variety of grounds but also assail the order of attachment passed by the Sub Divisional Magistrate, Narwana under Section 146 of the Code on April 16, 1986. What he has done vide this order is that the proerty in dispute has been attached treating the case to be one of emergency and the file has been consigned to the record room with the direction that the parties should go and get their right settled from a Civil Court. Having heard the learned Counsel for the parties at some length. I find that this order of the Magistrate cannot possibly be sustained. I have already ruled in Criminal Misc. Nos. 7314 to 7316 and 6949M of 1986 (Jasant Singh and others v. The State of Punjab etc.) decided on January 9, 1987, 1987(1) Recent Criminal Reports 237 that a reading of the two sections, i.e., 145 and 146, Cr.P.C. together reveals that while taking action under the latter section, the Magistrate can attach disputed property in three situations, i.e., if he at any time after making the order under subsection (i) 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 to in Section 145; or (iii) is he is unable to satisfy himself as to which, of them was then in such possession of the subjectmatter of dispute. In the first situation he can attach the property any time after making the order, commonly known as preliminary order under Section 145(1) of the Code while in the other two situations he can act under Section 146 only at the final stage of the proceedings. Now can the Magistrate stop or close the proceedings after having acted under the situation mentioned at No. (i) above ? To my mind, he cannot. For this conclusion of mine I seek support from observations of their Lordships of the Supreme Court in Mathuralal v. Bhanwarlal and another, AIR 1980 SC 242, I am of the considered view that if the Magistrate has chosen to act and attach the property under the situation mentioned at No. (i) above, he has to continue the proceedings under Section 145 of the Code and to conclude these on merits. He can just not stop half way through and consign the file to the record room. As has been pointed out above in this case this is what precisely the learned Magistrate has chosen to do.

For the reasons recorded above, the impugned order Annexure P.4 has essentially to be set aside to the extent it files the proceedings under Section 145. I order accordingly. The matter is thus sent back to the learned Magistrate for proceedings further in accordance with law. He would decide it expeditiously after hearing the parties who are entitled to raise all sorts of objections before him. The parties through their counsel are directed to appear before him on February 20, 1987.

JUDGMENT accordingly.