KARTIK GANGARAM CHOUDHARY Vs. JAGTU

JUDGEMENT

(1.) IN this revision preferred under section 401 of the Criminal Procedure Code (in short 'the Code') the Second Party member in a proceeding under section 145 of the Code calls in question the pregnability of the order passed by the learned Sub-Divisional Magistrate, Kawardha in Criminal Case No. 201/97 whereby invoking the jurisdiction under section 146 (1) of the Code he has directed for attachment of the property and appointment of a Third Party receiver.

(2.) THE facts as have been unfolded are that on the basis of a police report a proceeding under section 145 of the Code forming the subject-matter of Criminal Case No. 201/97 was initiated. On 22-5-1997 preliminary order was passed by the learned SDM and notices were issued and parties were asked to file their show cause/written statement. According to the police report there was dispute between the present petitioner and the non-applicants in respect of huller mill situate on Khasra No. 65/5 in Village Bedarchi. In the report it was also indicated that the dispute has been continuing for the last 4 to 5 years and in the year 1992 a Criminal Case No. 56/92 was instituted for offences punishable under section 452/392 of Indian Penal Code. It was also mentioned in the report that due to the dispute there was apprehension of breach of the peace. On the basis of the said report the learned S. D. M. passed the preliminary order and directed both the parties to file their respective show cause. Though the matter was adjourned from time to time neither party filed the written statement. While the matter stood thus, on 15-10-1997 an application was filed under section 146 (1) of the Code by the Second Party members, the non-applicants herein, for appropriate order for attachment of the property and appointment of a receiver. In the said petition it was averred that the huller mill was situate in Khasra No. 65/2 in respect of which the Second Party members had the unquestionable title. It was also averred in the petition that from the police report it was apparent that there was apprehension of breach of the peace and the situation was quite grave which warranted exercise of jurisdiction under section 146 (1) of the Code. The aforesaid prayer was resisted by the First Party, the applicant herein, contending inter alia, that the proceeding was initiated in respect of Khasra No. 65/5 but in the petition under section 146 (1) of the Code it has been given a go-bye and a new Khasra number has been mentioned. Apart from the aforesaid, it was also stated in the objection that circumstances did not warrant for attaching the property as the conditions precedent as enjoined under section 146 (1) of the Code were non-existent. It was highlighted by the present applicant that the huller mill, in question was situate on Khasra No. 102/4 and hence the dispute relating to either of the plot was inconsequential. It was also putforth that the licence in support of the aforesaid huller mill has been granted by the competent authority exclusively in favour of the present applicant. In support of the aforesaid contentions certain documents were filed along with the objection.

(3.) THE matter was heard on 28-10-1997 and by order dated 4-11-1997 the learned Magistrate passed the impugned order.