G.B. Singh, J.@mdashThis is a petition u/s 482 Code of Criminal Procedure for quashing the entire proceedings u/s 145 Code of Criminal Procedure along with the order dated 29-7-1987 passed by the Sessions Judge, Hardoi, and also the order dated 26-8-1987 (wrongly mentioned as 18-9-1987) so far as it directs continuance of the proceedings u/s 145 Code of Criminal Procedure.
2. There is a dispute between the parties regarding two shops bearing Municipal nos. 308 and 309-B situate in Sandila Town, District Hardoi. The Sub-Divisional Magistrate, Sandila, passed a preliminary order on 5-8-1985 u/s 145 Code of Criminal Procedure observing that there is a dispute between the Petitioners and opposite party likely to cause a breach of the peace. On the same day he passed an order for attachment of the property u/s 146 Code of Criminal Procedure on the ground that there is imminent danger of the breach of the peace and as such it is a case of emergency. Against this the Petitioners filed an objection petition for dropping the proceedings u/s 145 Code of Criminal Procedure on the allegations that a partition suit is pending between the parties and the shops are in exclusive possession of the objectors. There is no dispute between the parties about possession and there is no apprehension of the breach of the peace, so the proceedings may be dropped. This objection petition was rejected by the learned Magistrate on 22-3-1986 (Annexure 3) observing that there is dispute between the parties likely to cause the breach of the peace and the material placed before him does not show that the shops are joint properties. He, therefore, came to the conclusion that there was no justification for dropping the proceedings u/s 145 Code of Criminal Procedure. Against this order the Petitioners went up in revision before the learned Sessions Judge and he dismissed it on 29-7-1987. Copy of the judgment is annexure 4. He observed that the order of the learned Magistrate refusing to drop the proceedings does not suffer from any infirmity. He, however, added that if the Petitioners want to get the attachment withdrawn they can move an application under the proviso to sub-section (1) of Section 146 Code of Criminal Procedure The Petitioners accordingly moved an application before the learned Magistrate that the attachment may not be withdrawn as there is no apprehension of the breach of the peace. In order to substantiate this contention it was again asserted by the Petitioners that they are in possession of the shops. On this application the learned Sub-Divisional Magistrate deputed the Tahsildar Sandila to make local enquiry and submit report. His report was that the Petitioners are keeping their goods in the two shops and if the locks put on the doors of these shops are opened there is no possibility of the apprehension of the breach of peace and the attachment can, therefore, be withdrawn. He accordingly withdrew the attachment order and directed the parties to appear before him to lead evidence about their possession. After this order (annexure-5) the Petitioners filed the present petition u/s 482 Code of Criminal Procedure to get the portion of the order relating to adducing of evidence about possession quashed. The opposite party also felt dissatisfied with the withdrawal of attachment and so he filed a revision before the Sessions Judge. That revision is pending before that court.
3. Heard Learned Counsel for the parties.
4. A preliminary objection has been raised on behalf of opposite party that the petition u/s 482 Code of Criminal Procedure is not maintainable because it amounts to second revision which is not permissible under the provisions of the Code of Criminal Procedure. In support of this argument reference was made to Rajan Kumar Machananda v. State of Karnataka (XXV) 1988 ACC 54. The observations made in this case undoubtedly support the contention of the Learned Counsel for the opposite party in so far as it relates to quashing of the order dated 9-7-1987 passed by the learned Sessions Judge in revision (annexure-4). Learned Counsel for the Petitioners realising the weakness of his stand in respect of the order dated 29-7-1987 frankly conceded at the time of arguments that he does not press his petition in so far as it relates to the order dated 29-7-1987 passed by the learned Sessions Judge in revision. He however, contended that the petition u/s 482 Code of Criminal Procedure has been moved against the order of the learned Sub-Divisional Magistrate dated 26-8-1987 (annexure 5) also and it cannot be rejected on the basis of the aforesaid case because it is not by way of second revision. This argument of the Learned Counsel for the Petitioners appears acceptable. It is not by way of second revision. This argument therefore, evident that the petition u/s 482 Code of Criminal Procedure against the order dated 29-7-1987 cannot be entertained whereas it is maintainable so far as it relates to the order dated 26-8-1987.
5. Learned Counsel for the Petitioners vehemently argued that when the learned Magistrate had come to the conclusion that there was no apprehension of the breach of the peace, he should have dropped the proceedings and should not have fixed a date for adducing evidence by the parties to prove their respective possession over the shops in dispute. Learned Counsel for the opposite party, on the other hand, argued that the order withdrawing attachment with the observation that there is no breach of the peace was passed exparte without giving an opportunity to the opposite party and as such the entire order dated 26-8-1987 should be quashed. In my opinion, the entire order dated 26-8-1987 suffers from illegality and it is a fit case in which interference should be made in exercise of the inherent jurisdiction of the Court.
6. The Petitioners have not filed a copy of the application which they gave after the dismissal of their revision by the learned Sessions Judge. A perusal of the order passed on that application (Annexure 5) shows that the application had been moved for withdrawal of attachment and in view of the proviso to sub-section (1) of Section 146 Code of Criminal Procedure (sic) because an observation had been made to that effect by the learned Sessions Judge in the concluding paragraph of his judgment in revision. The proviso reads as follows :
Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
The proceedings u/s 145 Code of Criminal Procedure can be dropped on an objection or information under sub-section (5) of that Section that no dispute likely to cause the breach of the peace exists or has existed. In such a case the Magistrate cancels the preliminary order and stays further proceedings. In the present case the Petitioners did not contend that they had moved an application for cancellation of the preliminary order and staying the proceedings u/s 145 Code of Criminal Procedure. They had simply moved an application under the proviso to sub-section (1) of Section 146 Code of Criminal Procedure. The attachment can be withdrawn if there is no longer any likelihood of breach of the peace with regard to the subject matter whereas the preliminary order can be cancelled and further proceedings u/s 145 Code of Criminal Procedure can be stayed if it can be shown that no dispute exists or has existed. Thus, there is some difference in the language of the two provisions but it is not material for the purposes of the present case.
7. Under the proviso to sub-section (1) of Section 146 Code of Criminal Procedure the Magistrate has jurisdiction to pass an order raising attachment where he is satisfied that there is no longer any likelihood of the breach of the peace. He, however, cannot withdraw attachment without recording his satisfaction and reasons for his satisfaction. In the present case, the learned Sub- Divisional Magistrate did not record any reason except that the report of the Tahsildar is that if the locks are opened there is no likelihood of breach of the peace. It could not be satisfactory reason for arriving at the aforesaid conclusion. The reason is that he could not vacate the attachment without hearing the parties His order amounted to final disposal of the case. As soon as he came to the conclusion on the basis of the report of the Tahsildar that there is no likelihood of breach of the peace he could not proceed further but had to drop the proceedings. He instead of dropping the proceedings fixed a date for appearance of the parties to lead evidence about possession. If the learned Sub-Divisional Magistrate was not satisfied which party was in possession before passing the aforesaid order, he could not withdraw the attachment. The reason is that after the attachment he had to release the property in favour of either party. The Tehsildar had made the aforesaid recommendation on his observation that the Petitioners are in possession of the shops in dispute. The learned Sub-Divisional Magistrate had not accepted that observation of the Tahsildar and had fixed a date for making enquiry into the matter himself. He could not therefore at once jump to the finding that attachment is liable to be withdrawn as apprehension of the breach of the peace has ceased to exist. A glance on the order shows that he did not hear the parties before passing the order for withdrawal of the attachment. Thus, the entire order dated 26-8-1987 suffers from illegality and is liable to be quashed.
8. It was argued by the Learned Counsel for the Petitioners that he has challenged the second part of the order fixing a date for leading evidence about possession and as such the entire order dated 26-8-1987 should not be quashed. I do not find any substance in this argument. The reason is that the matter has come up before the court u/s 482 Code of Criminal Procedure and its inherent jurisdiction has been invoked. In the exercise of inherent jurisdiction if the other part of the order is also found to be suffering from an illegality it cannot be left intact. Thus, the order dated 26-8-1987 as a whole is liable to be quashed.
9. It may be made clear at this stage that the learned Magistrate shall decide the application dated 12-8-1987 afresh after giving opportunities to the parties to place the material before him in support of their respective contentions.
10. The petition is, therefore, partly allowed and the order dated 26-8-1987 (Annexure 5) is quashed. The Magistrate shall decide the application dated 12-8-1987 and the case u/s 145 Code of Criminal Procedure in accordance with law. The stay order dated 20-10-1987 is discharged.
