- (1.) This petition under S. 482, Cr. P.C. has been filed by the petitioner-Nathu Khan (hereinafter referred to as the party No. 1) for quashing the order dated 28-7-2000 passed by the learned Additional Sessions Judge, Bikaner in Criminal Revision No. 1/2000 and the order dated 27-12-1999 passed by the learned Sub-Divisional Magistrate, Khajuwala in Criminal Case No. 320/1999 by which the learned SDM withdrew the order of attachment of the property in question dated 22-10-1999 and directed that disputed property be given to the main allottee Rameshwarlal and dropped the proceedings under S. 145, Cr. P.C.
(2.) It arises in the following circumstances :- On 17-10-1999, a report was made by the party No. 1 against the respondent Nos. 2 to 4 (hereinafter referred to as the party No. 2) in the Police Station, Chhatargarh and on that report, SHO, Police Station, Chhatargarh filed a complaint under S. 145, Cr. P.C. before the learned Sub-Divisional Magistrate, Khajuwala on 22-10-1999 stating inter alia that the land in dispute has been given to one Purkharam and on 16-10-1999 he came to party No. 1 and told him that the party No. 2 did not allow him to cut the crops of Kapas. Thereafter, party No. 1 along with Purkharam went to the field where party No. 2 met and seeing them, party No. 2 started abusing them and told that they would not allow to cut the crops. It is further stated in the complaint that police found that there is a dispute between the parties and both parties are claiming their rights over the disputed property and there is imminent danger. On this complaint on the police, the learned Sub-Divisional Magistrate, Khajuwala drew a preliminary order on 22-10-1999 and appointed Tehsildar as Commissioner and the land in question was attached and notices were issued to the parties. Thereafter, proceedings continued before the learned Sub-Divisional Magistrate and on 27-12-1999, after hearing both the parties, he withdrew the order of attachment of the disputed property dated 22-10-1999 and directed that the disputed property be given to the main allottee Rameshwarlal and dropped the proceedings under S. 145, Cr. P.C. holding inter alia :- 1. That disputed land which was attached was in possession of the party No. 2 and in coming to this conclusion, he placed reliance on the report of the Commissioner. 2.That the main allottee of the land in question was Rameshwarlal, who gave the land in question for cultivation to party No. 2. 3. That there was no possession of the party No. 1 over the disputed land nor there was any title in favour of the party No. 1, as the power of attorney which was given in favour of party No. 1 by Rameshwarlal was cancelled by Rameshwarlal on 4-9-1997. 4.That in the above circumstances, he withdrew the order of attachment of the property in dispute dated 22-10-1999 and directed that property in question be given to party No. 2 and dropped the proceedings under S. 145, Cr. P.C. Aggrieved from the said order of the learned Sub-Divisional Magistrate Khajuwala dated 27-12-1999, the party No. 1 preferred a criminal revision before the learned Sessions Judge, Bikaner, which was transferred to the Court of Additional Sessions Judge, Bikaner and the same was registered as Criminal Revision No. 1/2000. The learned Additional Sessions Judge, Bikaner through order dated 28-7-2000 rejected the revision filed by the party No. 1 holding inter alia that the order in question which was passed by the learned Sub-Divisional Magistrate, Khajuwala on 27-12-1999 does not suffer from any illegality or irregularity and moreover, he also came to the conclusion that since over the same land, there was civil dispute between the parties and in the civil suit, an application for temporary injunction, which was filed by the wife of the party No. 1, was rejected holding that she was not in possession and, therefore, he upheld the order of the learned Sub-Divisional Magistrate dated 27-12-1999. Aggrieved from the said orders passed by the learned Sub-Divisional Magistrate, Khajuwala and the learned Addl. Sessions Judge, Bikaner, this criminal misc. petition under S. 482, Cr. P.C. has been filed by the party No. 1.
(3.) In this petition, the following submissions have been made by the learned counsel for the party No. 1 :- 1. That the order dated 27-12-1999 passed by the learned Sub-Divisional Magistrate, Khajuwala is illegal and deserves to be set aside because that order was passed without hearing the party No. 1 as the date in the proceedings under S. 145, Cr. P.C. before the SDM was 10-1-2000 and the order dated 27-12-1999 was passed in his absence. 2.That once the Sub-Divisional Magistrate was satisfied from the police investigation and land in question was attached on 22-10-1999, there was no occasion for the SDM to recall that order on 27-12-1999 and the SDM has no right to decide as to who is owner of the land in question and it would be decided by the competent Civil Court for which suit was already pending and, therefore, the order passed by the Sub-Divisional Magistrate as well as the order passed by the learned Addl. Sessions Judge are without jurisdiction and the same deserve to be set aside. 3.That so far as the rejection of application of the wife of the party No. 1 by the Civil Court is concerned, no right has accrued to the party No. 2 as civil misc. appeal is pending before this Court. Hence, it is prayed that this petition be allowed and both the impugned orders be quashed.;