KAPUR, J. - (1.) THE dispute in the present case relates to Khasra Nos. 194,196, 197 and 198 in village Panwa Kalan. THE area is said to be 302 Bighas, Earlier proceedings under Sections 145 and 146 Cr. P. C. were taken in respect of this land between the parties by the S. D. M. Sambher Lake, who passed the order attaching the land and appointing a Receiver and also issued notices to the parties. THE revision filed against this order attaching the property was accepted as the Addl. Sessions Judge and the order under section 146 Cr. P. C. was set aside on 5. 12. 1991. A revision petition was preferred before this Court and the same was dismissed on 20. 12. 1991 by this court holding that the passing of the attachment order prior in time to the issuances of notices to the parties was illegal.
(2.) IT may be mentioned here that when the Additional Sessions Judge set aside the attachment order, the matter was again before the SDM and he by his order dated 12. 10. 1991 dropped the proceedings when actually he ought to have heard the parties in pursuance of notices issued to them under Section 145 Cr. P. C. On 19. 12. 1991 the Station House Officer, Police Station Dudu district Jaipur made a complaint before the ACM Dudu giving the details of the dispute between the parties leading to the incident of 13. 10. 1991 out of which cross cases have been instituted and the ACM issued notices to the parties on 7th January 1992, and on the same day after considering the affidavits filed by the Station House Officer he attached the property and appointed Tehsildar, Dudu as the Receiver. Against this order dated 7. 01. 1992 the present petition has been filed. The learned counsel for the petitioners has contended that on basis of the material which was before the Court earlier a second order of attachment has been passed and it has been done only to bye-pass the order of this Court and this should not be sustained. It is contended that the parties should raise dispute before the revenue courts and seek an order rather than adopting a shortcut method of getting the land attached in proceedings under Section 146 Cr. P. C. According to him, the present order is against the observations made by this Court in order dated 20. 12. 1991. The learned counsel for the non-petitioners has first of all contended that no revenue proceedings are pending between the parties and this fact could not be brought to the notice of this Court when the order dated 20. 12. 1991 was passed. It is contended that the satisfaction be recorded in proceedings under Section 146 (1) Cr. P. C. is that of the Magistrate and the same cannot be looked into by revisional court. There was sample material before the court for proceeding as he has proceeded and this sufficiency cannot be enquired into in these proceedings. As stated above, it has been pointed out that instead of proceeding with the application under Section 145 Cr. P. C. the court below dropped the proceedings and this was an illegal procedure and hence, it became necessary to raise the dispute again. Reliance has been placed on a number of decisions. In Rameshwar Lal vs. State of Rajasthan (1) it has been held that this Court should interfere under Section 482 Cr. P. C. only when there is abuse of process of Court or it becomes necessary to interfere, in any way to enforce any other provisions of the Code or it is expedient in the interest of justice to interfere. In R. H. Bhutani vs. Miss. Man J. Desai and others (2) it was held that sufficiency of material for purposes of proceeding under Section 145 Cr. P. C. cannot be enquired into in a revision.
(3.) I have considered the contentions raised on behalf of both the sides. In my earlier order dated 20. 12. 1991 it was observed that litigation between the parties is pending before the revenue court and both the parties should approach the revenue court for purposes of any order which they want in their favour rather than raise a dispute and cause breach of peace. If, as stated now no revenue litigation is pending between the parties then it cannot be said that the parties should take the law in their hands. Still there is some other way of getting the dispute decided. The main thing to be considered is whether the order dated 7. 01. 1992 can be said to be proper in the circumstances of the case. One thing is certain which is that instead of dropping the proceedings, the SDM ought to have proceeded with the enquiry in the earlier proceedings under Section 145 Cr. P. C. This was not done in pursuance of the earlier notice but it could be done in pursuance of the notice issued on 7. 01. 1992. For purposes of attaching the property under Section 146 (1) Cr. P. C. it has to be shown that the case was one of emergency so that it was necessary to attach the subject of the dispute. In the present case, the property in dispute had been attached in the earlier proceedings under Section 145 Cr. P. C. and in pursuance of his attachment, Receiver was appointed. This Receiver had not handed over the property to any party before the second attachment order dated 7. 01. 1992 was passed. The complaint filed by the Station House Officer, Dudu on 19. 12. 1991 also does not indicate the incident which had occurred after 13. 12. 1991 for holding that the situation was one of emergency. The recent facts are very relevant and the same are missing in the present case. If there could be a dispute now it could be as to whom the property should be returned after the attachment order was set aside. If there was such a dispute then the Magistrate should hold an enquiry and decide as to which party is entitled to get the possession over the disputed property. The latest developments are missing in the report of the Station House Officer and in absence of the latest position, it is difficult to say that the situation is one of emergency to attach the property. It was already in attachment and the same has not been delivered to any body after the attachment order was withdrawn and in absence of the latest circumstances, the proceedings deserve to be set aside to secure the ends of justice. In the result, this petition is allowed. The order dated 7. 01. 1992 passed on the application for attaching the property and appointing a Receiver is set aside. The order by which the notices have been issued to both the parties for submitting their claims in regard to possession over the disputed property is maintained. This matter shall be enquired into by the ACM after the parties submit their written statements. It is also directed that the SDM/acm, whoever is dealing with the matter shall hold an enquiry as to which party is entitled to get possession over the property in dispute after the withdrawal of the attachment order dated 13. 10. 1991. . ;