K. BHATNAGAR, J. - (1.) THIS revision petition is directed against the order passed by the learned S. D. M. , Hanumangarh dated 24-12-79, whereby in proceedings under Section 145 Cr. P. C. , the shop in question was ordered to be attached and Tehsildar Hanumangarh was appointed Receiver with direction to take possession of the shop and look to its management.
(2.) SUCCINCTLY narrated the facts of the case giving rise to this revision petition are that, one shop situate at Sarki-Market at Hanumangarh Town, belonging to the petitioners, was rented out to Santa Singh, non-petitoner No. 2 four years prior to the initiation of the proceedings under Section 145 Cr. P. C. on a monthly rent of Rs. 50/ -. In the intervening night of Is and 2nd November, 1979, the petitioners broke open the lock of the shop and forcibly took it in possession, throwing out the articles belonging to Santa Singh. On the morning of 2-11-79 Santa Singh reaching the shop found the petitioners in occupation of the shop and his articles lying outside. On his raising objection to it, there was quarrel and he was given a beating. Santa Singh lodged the report of the incident with Police Station, Hanumangarh Town and a case under Sections 457 and 323 IPC was registered against the petitioners. In view of the tension between the parties and apprehension of breach peace, the S. H. O , Police Station Hanumangarh filed a report on 6-11-79 with the request that proceedings under Section 145 Cr. P. C. may be initiated. Santa Singh also filed an application in the Court under Section 145 Cr. P. C. with the request that the shop in question may be attached. The learned S. D. M. inspected the site. In view of his observations and the report of the police, he opined that there was apprehension of breach of peace amongst the parties. Hence proceedings under Section 145 Cr. P. C. were initiated and notices were issued to the parties for their appearance in the Court and to produce evidence regarding their possession of the disputed shop. The learned S. D. M. being of the opinion that there was imminent danger of breach of peace, passed an order under Section 146 (1) Cr. P. C. for the attachment of the shop and appointed Tehsildar as Receiver as stated earlier. Mr. B. R. Arora, learned counsel for the petitioners has assailed the impugned order on a number of grounds. According to him, when a suit had been filed by Santa Singh for restoration of possession against the petitioners Madanlal and Jagdish Prasad, there was no necessity for the learned Magistrate to proceed under Section 145 Cr. P. C. much less under Section 146 (1) Cr. P. C. Another ground of attack on the impugned order made by the learned counsel for the petitioner is that, without there being any material for holding that there was imminent danger of peace, the learned S. D. M. , without applying his mind, has ordered the attachment of the shop and such an order has no jurisdiction. The attachment of the shop without passing a separate preliminary order in the proceedings has also been assailed. Mr. H. S. Sandhu, learned counsel for Santa Singh, non-petitioner No. 2, controverted these contentions and submitted that the fact of a criminal case against Madan Lal and Jagdish Prasad petitioners having been registered by the police shows the tension between the parties. That, after taking forcible possession of the shop in question by the petitioners, throwing out the articles of Santa Singh and making alterations in the shop had rightly led the Court to infer that there was imminent danger of breach of peace. It has been stressed by Mr. Sandhu that pendency of a civil suit for restoration of possession forcibly taken by the other side, will not be a bar for the proceedings under Section 145 Cr. P. C. Certain authorities have been referred to by the learned counsel for the parties to substantiate their respective contentions:
(3.) FROM the perusal of the record, it is evident that there was dispute between the parties concerning the shop in question The lodging of the First Information Report with the Police and the case having been registered under Ss. 457 and 323 I. P. C. strengthens the point that the peace and tranquility were in jeopardy. Certain norms are to be kept in view by the Court while initiating the proceedings under Section 145 Cr. P. C. and passing order for attachment of the proper in dispute. The importance of applying mind before passing on order of attachment of the property in dispute and appointment of Receiver for the same, cannot be over emphasized. Courts are to be vigilant about the possession of the parties over the property in dispute and should not lightly pass any order in the proceedings under these provisions. At the same time if the Court is satisfied that if steps are not taken for the attachment of property there would be likelihood of breach of peace, the Court should not hesitate to order attachment of property. Mr. Arora referred to the case of Tikuda vs. The State (1) to substantiate his contention that, where a dispute about immovable property is already pending before a revenue or a civil court and one of the parties to that suit moves a Magistrate to take proceedings under Section 145 Cr. P. C. about the same immovable property, the Magistrate should not lightly proceed in the matter. Their Lordships, while enunciating this principle, were pleased to cast a duty on the Magistrate to weigh and consider, whether there is a real apprehension of breach of peace and if so, whether the same cannot be averted by proceedings under Section 107 Cr. P. C. In that case the proceedings under Section 107 at the report of the police were initiated. There was also an application under Section 117 (3) Cr. P. C: (old) with the prayer that as immediate measures were necessary for the prevention of breach of the peace, the non-petitioners should be bound down for keeping peace for the specified period. In view of the peculiar facts and circumstances of the case their lordships were of the opinion, that the Magistrate having passed an order under Section 112 Cr. P. C. calling upon the non-petitioners to show cause as to why they should not be bound down to keep peace for a period of one year should have proceeded to complete the inquiry as required by Section 117 Cr. P. C. and should not have converted the proceeding from S. 107 Cr. P. C. to 145 Cr. P. C. Regarding the power of the Magistrate in cases where the matter in Civil Court or Revenue Court is pending, while enunciating the above referred principle, it was observed, that this does not mean that the jurisdiction of the Magistrate to proceed under Section 145 Cr. P. C. is ousted simply because the suit about the same immovable property is already pending in a Civil or Revenue Court. The question about the order of attachment of the property being passed along with the preliminary order without it being first served upon the parties, came for consideration before this Court in the case of Mahant Bhagwandas vs. Suggan (2) and his Lordship was pleased to propound the principle that, ordinarily an order of attachment should be made after hearing the parties to be affected by the order of attachment, and only in rare and exceptional circumstances the Magistrate should pass an ex-parte order of attachment, after clearly indicating how in the interest of maintenance of peace, an ex-parte order of attachment is necessary and insistence on proper service of notice to the parties is required to be dispensed with. The learned Judge, however, was also of the opinion that in appropriate cases a Magistrate is competent to issue an order of attachment alongwith the preliminary order without it being first served on the parties. In that case while passing the preliminary order, the Magistrate apprehended an imminent danger of breach of peace between the parties on the spot. He, therefore, thought it proper to direct attachment of land in question. On the same day, on the application being filed by the other party, supported by an affidavit, the learned Magistrate passed the order suspending the operation of the order of attachment. After a few days, the learned Magistrate again passed a one line order directing issuance of warrant of attachment. In the meanwhile, the parties aggrieved by the order of attachment preferred a revision petition and the Additional District Magistrate made a reference to this Court. This Court directed the S. D. M. to consider the question of emergency after hearing both the parties and to consider all such material as they may choose to produce before him, in the light of the position of law discussed in the order of this Court Meanwhile, the attachment of the property and the arrangements made for the custody, management and the possession of the properties were ordered to remain in operation till the S. D. M. decided the point. ;