Mohd. Nazir and Others vs Mohd. Ashraf and Others

R.P. Sethi, J.—Preliminary order of the trial Magistrate, Additional District Magistrate, Rajouri dated January 18, 1989, initiating

proceedings u/s 145, Criminal Procedure Code and the order attaching the property has been challenged by the petitioner herein with prayer to

quash the same. It is submitted that preliminary order and the order of attachment is contrary to the provisions of law which apparently appear to

be the result of non-application of mind, having been passed in a mechanical manner. It is submitted that the petitioners herein were the owners of

land covered by survey Nos. 155, 159 situate in village Dhanore Dhindian Tehsil District Rajouri and continuously in possession of land covered

by survey Nos. 134 and 135 which was owned by the State. The possession is claimed on the basis of the family partition between the parties.

The respondents are alleged to be the step brothers of the petitioner who have manipulated the order impugned by statement of wrong facts.

I have heard the learned counsel for the parties and perused the record.

The respondent herein namely; Mohd. Ashraf and others filed a petition u/s 145, Criminal Procedure Code in the trial Court stating therein that

they and the respondents were the real Sons of Mohd. Sarwar and the petitioner was continuously in possession of the property since kharief

1971. It was submitted that the respondents in the trial Court were trying to take forcible possession from the petitioner herein on the basis of

fabricated record. The khasra girdawari in kharief, 1988 pertaining to survey Nos. 134 and 135 showed that Mohd. Nazir and Mohd Azam

petitioners herein were in possession of the said land unauthorizedly. Similarly khasra girdawari pertaining to khasra Nos. 155 and 159 showed

that Mohd Nazir and Mohd Azam were in possession as co-sharers. No record appears to have been produced in the trial Court to show that the

said property had fallen to the share of Mohd Ashraf, Ghulam Mohd and Mohd Yousuf on the basis of any alleged family partition. The trial

Magistrate in the order impugned however referred to the alleged partition deed and held that the petitioners therein were in possession justifying

initiation of proceedings u/s 145, Criminal Procedure Code. The orders impugned appears to have been passed without application of mind or

reference to any documents, even prima facie showing Mohd Ashraf and others to be in possession of the property at the relevant time as

contemplated by the provisions of Section 145, Criminal Procedure Code.

The satisfaction contemplated by Section 145, Criminal Procedure Code cannot be equated with mere apprehensions or allegations. If only the

allegations made in the petition are repeated in the preliminary order without giving any clear and unambiguous finding of a dispute the same would

not be sufficient to uphold the commencement of the proceedings under the section. It is not possible to lay down any hard and fast rule regarding

the sufficiency of material upon which the Magistrate was satisfied before assuming jurisdiction in a particular case. The material would vary with

the facts of each case and with the particular exigencies. The satisfaction once recorded which is based upon record cannot be substituted by the

Revisional Court. However if the Magistrate does not refer to any evidence, document or record or refers the evidence which is nonexistent before

passing of preliminary order the Revisional Court would be justified in taking action in appropriate proceedings for setting aside the orders passed.

The provisions of Section 145 cannot be a substitute for a Civil action to take possession depriving the rightful person in possession of the

property. In the instant case the Magistrate has referred to khasra girdawari and the partition deed to prima facie hold Mohd Ashraf and others to

be in possession at the relevant time. A perusal of the record shows however, that the order was passed merely upon conjectures and not on the

basis of any evidence. It also appears that the Magistrate himself has not passed the order and instead his clerk prepared the order which he

signed. The Magistrate has, therefore, failed to exercise the jurisdiction vested in him in commencing the proceedings u/s 145, Criminal Procedure

Code against the petitioners.

So far as the attachment of the property, the subject matter of the dispute is concerned, the order of the trial Magistrate appears to have been

passed mechanically and without application of mind. It is now well settled that the extra ordinary jurisdiction conferred upon the Magistrate to

attach the property, in proceedings u/s 145, Criminal Procedure Code must be exercised by the Magistrate with great care and caution and should

not be resorted to mechanically and in a routine manner. It would be appreciated that the orders of attachment should be passed after affording the

other party an opportunity of being heard. However where a Magistrate is satisfied that in view of imminent breach of peace an order of

attachment of the property should be passed without hearing the other side, he can pass such order after recording the circumstances justifying

such an extreme action and it should be apparent on the face of the order that the Magistrate was satisfied about the existence of plausible case for

exercising extra ordinary powers vested in him for attaching the, property during the proceedings. Property cannot be ordered to be attached

merely upon the allegation, conjecture, apprehension expressed by one of the party.

In the instant case the trial Magistrate has passed the order of attachment of the property in a casual mechanical and routine manner without

specifying the grounds justifying the exercise of jurisdiction for taking extra ordinary action of attaching the property without notice to the other

side. The general rule for attaching the property should be to hear the other side before passing the order of attachment and the power of passing

ex parte order of attachment should be resorted, to only in exceptional cases of imminent danger of breach of peace to be mentioned and reflected

in such order.

In view of what has been stated herein-above it appears that the Magistrate has passed the order completely ignoring all the provisions of law

settled with respect to the exercise of power u/s 145, Criminal Procedure Code in passing the preliminary order and for attachment of the

property.

The Revision petition is accordingly accepted and the order of the trial Magistrate dated January 18, 1989 by which the preliminary order was

drawn and the property directed to be attached u/s 145, Cr. P.C. is quashed. The proceedings initiated by the trial Magistrate are held to be

without jurisdiction. The property, if attached shall be restored to the petitioners. Civil Misc. Petition No. 12 of 1989 is also disposed of. Parties

are left to bear their own costs.