GAYA SINGH Vs. DOMAN SINGH

JUDGEMENT

(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 :--

(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.