Masih Charan and Ors. vs E.M.Lal & Ors.

Palok Basu, J.—By this application under Section 482. Cr. P. C. application Masih Charan & Ors. have challenged the order of the Magistrate dated 25.4.89 whereby the property regarding the proceedings under Section 145, Cr. P. C. were going on was put under attachment.

The facts are that proceedings started under Section 145, Cr. P. C. on the basis of a police report dated 15.8.87 relying upon which a preliminary order was passed by the Magistrate on 26.8.87. Some orders relating to possession of land was also passed but a revision having been taken to the Court of Sessions Judge then, that part of the order was set aside and only the proceedings under Section 145 Cr. P. C. were directed to go on.

It appears that on 25.4.89 the Magistrate has passed the impugned order attaching the property. From the material on the record it does not appear that there was any sufficient material before the Magistrate so as to change his opinion and put the property under attachment as late as on 29.2.89 even though proceedings were going on in his Court since 30.7.87. It has been stated times out of number that attachment order can be passed only as a last resort and for doing so the likelihood of the breach of peace should be apparently imminent. Unless that is so the Magistrate will no have the jurisdiction to attach the property under Section 146, Cr. P. C.

In view of the aforesaid discussion this application succeeds and is allowed. The order dated 25.4.89 directing the attachment of the property is set aside. The Magistrate will proceed to decide the case under Section 145, Cr. P. C. without any unreasonable delay.

Interim order dated 27.9.89 is hereby vacated.