- (1.) C. A. Rahim, J. This application arises out of the order of the learned Sessions Judge Basti in Criminal Revision No. 182 of 1982 passed on 15. 10. 1982 dismissing the revision preferred against the impugned order dated 26. 7,1982 passed by S. D. M. Basti in case No. 22 of 1982 under Section 145 Cr. P. C.
(2.) THE fact, in brief is that one Ram Chet owner of the property in question died leaving his widow and two daughters. But all the three female members of the family were murdered and respondent Nos. I and 2 were arrested and convicted for the murder of those persons. An appeal has been preferred by them which is pending. THE dispute is with regard to the property of Ram Chet which according to the respondent Nos. 1 and 2 was inherited by them due to the death of the wife and children of Ram Chel. Proceeding under Section 145, Cr P. C. was started on a preliminary report dated 13. 6. 1982 in which it was alleged that both the applicants were running on school in the building situated in the disputed house. It was further alleged that tension was prevailing in between the two partk over that property. Learned S. D. M. passed a preliminary order under Section 145 (1) Cr. P. C. on 12. 7. 1982 requiring both the parties to appear before him on 19. 7. 1982 and to place their respective claims regarding possession. Notice was not found served on the opposite parties on 19. 7. 1982 hence date was shifted to 27. 7. 1982. In the meantime Kishori respondent No. 1 before me filed an application on 21. 7. 1982 along with affidavit with a prayer to attach the disputed property on the ground of emergency. So to avoid any untoward happening the learned Magistrate passed an interim order on 26. 7. 1982 under Section 146 (1) Cr. P. C. directing the S. O. of Police Station to attach the said property and to put it in the charge of third person as receiver. Against that order a revision was filed by the applicants before the Sessions Court and learned V Additional Sessions Judge, Basti by his order dated 15. 10. 1982 dismissed the revision on the ground that the said order was an inter-locutory order. THE applicants have come up with a prayer to invoke the inherent power of this Court to redress the grievance of the applicants. During hearing learned counsel for the applicants remained absent. Learned counsel for the respondents was heard. The contention of the applicants in paragraph 8 of the affidavit accompanying the application is that the order under Section 146 (1) Cr. P. C. was passed without service of notice to them and hence it is illegal. In paragraph 10 of the counter affidavit it has been stated that there was no law requiring the learned Magistrate to hear the parties before passing order under Section 146 (1) Cr. P. C. As regard? possession learned counsel for the respondents has submitted that the respondents Nos. 1 and 2 were and are in possession of the disputed property. It has also been submitted that there is no illegality in the attach ment order passed by the learned Magistrate considering the emergency of the situation.
(3.) IT appears from the record that the applicants have started running one Montessori School in one of the building of the disputed property since 3-4 years. The plea of possession was raised in paragraphs 3 to 5, 10, 12, and 13 of the affidavit filed by the applicants along with the application. In paragraphs 12 and 14 of the counter affidavit the possession of the applicants was not specifically denied. Moreover filing of an application by the respondent Nos. 1 and 2 inviting the court to attach the property under Section 146 (1) Cr. P. C. supports the claim of the applicants not the school was/is being run in that premises by them. The circumstances in which the attachment order was passed calls for question. A preliminary order was passed but since the notice was not served on the applicants the date of the case was shifted to 27. 7. 1982. Prior to that date, i. e. , on 21. 7. 1982 an application was filed by Kishori to attach the property and order was passed on 26. 7. 1982 i. e. one day prior to the date already fixed by the learned S. D. M. for appearance of the applicant without showing any reason for doing so. So it is clear that the said order was passed behind the back of the applicants. It was not stated why the order was passed one day prior to the date of the appearance of the applicants and what was the necessity of it. The grounds that was mentioned in the order dated 26. 7. 1982 was not sufficient and the reasons on which learned Magistrate came to the finding that due to the emergency it was necessary to attach the property was also not specific. It is true that the S. "d. M. can pass order of attachment in the state of emergency without hearing the other side. But the said circumstances should appear in the order itself to assess the gravity of the situation but the same is lacking in this case. It is not convincing that at that stage and in that manner there was any necessity to pass the impugned order without waiting for one day allowing the other side to have their say in the matter. Accordingly such order should not exist for ends of the justice. The learned Magistrate should call upon both the parties to place their claim and should pass the order after hearing both sides. While considering the cir cumstances the learned Magistrate should also consider the statements of both the parties in affidavit filed before this Court which has been discussed above. The S. D. M while considering the fact of possession shall be tree to act on the materials placed before him and shall not be prejudiced by any comments passed in this connection. The above observation is only with regard to disposing of the present application.;