GAYA SINGH Vs. DOMAN SINGH
LAWS(PAT)-1979-3-6
HIGH COURT OF PATNA
Decided on March 19,1979

GAYA SINGH Appellant
VERSUS
DOMAN SINGH Respondents


Referred Judgements :-

KHEDU MAHTO V. PREM SUNDARI [REFERRED TO]
CHANDU NAIK VS. SITARAM B NAIK [REFERRED TO]
HAKIM SINGH VS. GIRWAR SINGH [REFERRED TO]
CHANDI PRASAD VS. OM PRAKASH KANODIA [REFERRED TO]
DANDAPANI PALA VS. MADAN MOHAN PALA [REFERRED TO]
CAJITAN A DSOUZA VS. STATE OF MAHARASHTRA [REFERRED TO]
JAGJIT SINGH VS. JEET KAUR [REFERRED TO]
MANSUKH RAM VS. STATE [REFERRED TO]



Cited Judgements :-

HARIPODA MARDI VS. STATE OF JHARKHAND [LAWS(JHAR)-2003-5-7] [REFERRED TO]
RAJEEV KUMAR AGRAWAL VS. STATE OF BIHAR [LAWS(PAT)-2007-8-61] [REFERRED TO]
BAIJNATH CHOUBEY VS. RAM EKBAL CHOUBEY [LAWS(PAT)-1981-2-15] [REFERRED TO]
GIRWAR DAN VS. RAM PRASAD [LAWS(RAJ)-1984-1-12] [REFERRED TO]
KISUN YADAV VS. ASHARFI YADAV [LAWS(PAT)-1989-12-2] [REFERRED TO]
KISHAN BIHARI BIRLA & OTHERS VS. PREM KUMARI BHATI [LAWS(RAJ)-1983-8-57] [REFERRED TO]


JUDGEMENT

Nagendra Prasad Singh, J. - (1.)This case has been referred to a Full Bench for consideration of the questions as to whether under the provisions of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the new Code), a Magistrate initiating a proceeding under Section 145 of the said Code, can attach the subject matter of the dispute under Section 146 (1) without hearing the parties, and as to whether while the order of attachment continues, he can proceed to dispose of the said proceeding.
(2.)The petitioners in this application are members of the second party in a proceeding under Section 145, which was initiated on 31-5-1975 on the basis of a petition filed by the first party-opposite party. Learned Magistrate, the same day after hearing only the opposite party, attached the subject matter in dispute under Section 146 (1) saying :--
"It appears to me a case of emergency nature, the land mentioned in the petition at pages six to ten is attached under Section 146 (1) Cr. P. C."
The petitioners questioned the legality of the said order on the ground that the Magistrate concerned had no authority in law to attach the subject matter of the dispute without hearing the petitioners. This argument was advanced on the basis of a Bench decision of this Court in the case of Khedu Mahto v. Smt. Prem Sundari (1975 BBCJ 856). In the aforesaid Bench decision, it was held that under the new Code there is no scope of an interim attachment during the pendency of the proceeding : once the order of attachment is passed it is to continue until a competent court has determined the rights of the parties thereto, unless at some stage the Magistrate is satisfied that there is no longer any likelihood of breach of peace. It was further held that as the order of attachment was to affect a valuable right of one of the parties to the proceeding and likely to continue, in many cases for years till the dispute is decided by the civil Court, the party, which is not before the court, should be heard before such order of attachment is passed.
(3.)This case was listed for hearing before a Bench presided over by Madan Mohan Prasad and Shivanugrah Narain, JJ. That Bench was of the view that at the time of initiating the proceeding under Section 145 or any time thereafter, a Magistrate can pass an order of attachment under Sub-section (1) of Section 146 even without hearing the parties and such order shall not be per se illegal as held by the earlier Bench decision of this Court. It was also observed that having attached the subject matter in dispute, being satisfied about the existence of emergency, it is always open to the Magistrate concerned to withdraw the said attachment after the emergency disappears and then to proceed with the hearing of the case. On that view, this case was referred to a Full Bench on 25-8-1976.


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