M/s Indian Sulp Acid Industries Ltd. vs Gurjit Singh Partner Guru Nanak Construction Company Amritsar

S.S. Dewan, J.—In this petition u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as the Code) the petitioner has sought quashing of the preliminary order passed by the Executive Magistrate, Amritsar (Copy annexure P. 3) vide which the proceedings against the petitioner and the respondents were initiated u/s 145 of the Code and the property in dispute was attached u/s 146 (1) and the Code vide his order dated September 4, 1981.

Primarily, the grievance of the petitioner is that the attachment order was passed without hearing the parties. I have persued the impugned order. It is a composite order vide which both the parties were directed through the Station House Officer concerned not to interfere with the possession of the property till the matter was finally decided. By the same order, the disputed property was attached and the Naib-Tehsilder was appointed as Official Receiver. Such a composite order, to my mind, cannot be passed by the Executive Magistrate in view of the provisions of Sections 145 and 146 of the Code. Power to attach is given in section 146(1) of the Code, which is in the following terms :

It the magistrate at any time after making the order under sub-section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.

It is manifest from the aforesaid provision that first the Magistrate has to make order u/s 145(1) and after that if he considers the case to be one of emergency and decides that none of the parties was then in such possession as is referred to in section 145 or if he is unable to satisfy himself as to which of them was then in such possession, he may pass the attachment order till the determination by the competent Court of the rights of the parties. From the order it is manifest that he has not complied with the aforesaid provisions. He has also opined that the case is of emergency. Moreover, he was to pass a reparate order of attachment after passing the order u/s 145 (1) of the Code. Composite order is not envisaged. The Executive Magistrate had no jurisdiction to pass a composite order like the one under challenge. During the course of arguments Mr. Harbans Singh, Learned Counsel for the respondent, cited Muma Mir v. Ghulam Nabi Sheikn (1980) 7 Cri. L.T. 315, and M.A. Rahaman v. State of Andhra Pradesh 1981 Cri. L.J. 129. It is needless to refer to the decisions in the aforesaid cases because the ratio thereof is not applicable to the facts and circumstances of this case.

For the reasons stated, the impunged order of the Executive Magistrate, Amritsar, is quashed and this petition is allowed. The parties are, however, directed to appear before the Executive Magistrate, Amritsar, on 20th January, 1982, who is directed to proceed in accordance with law.