Gauhati High Court
Safique Ali vs Surajan Bibi on 28 October, 2003
Equivalent citations: 2004CRILJ1183, (2004)2GLR207
Author: T. Vaiphei
Bench: T. Vaiphei
JUDGMENT T. Vaiphei, J.
1. This is an application under Article 227 of the Constitution of India read with Section 482 of Cr.PC for quashing the order dated 26.3.2003 passed by the learned Sessions Judge, North Tripura, Kailashahar in Crl. Revision No. 3(1) of 2003 affirming the order dated 14.2.2003 passed by the learned Sub-Divisional Magistrate, Kailashahar, North Tripura, in Misc. Case No. 3/2003 under Section 145 of Cr.PC.
2. The facts as unfolded from the pleadings of the parties may be briefly stated as follows :-
The petitioner claims that he purchased the homestead land measuring 0'53 acres pertaining to Khatian No. 185, C.S. Plot No. 434 (Old) corresponding to new C.S. Plot No. 453, situated within Mouja- Bhagabannagar, Tehasil -. Kailashahar, North Tripura (hereinafter called 'the D/L' for short) from one Sri Paresh Ranjan Roy by a registered Sale Deed No. 1-1151 executed on 2.7.2001. The petitioner also claims that the said Sri Paresh Ranjan Roy had purchased the D/L from one Subhash Ch. Dhar by a registered Kabala No. 247/1956 on 20.8.1956. It is further claimed by the petitioner that the said Subhash Ch. Dhar purchased the D/L from Riyaj Ullah and Tahir Miah of Bhagabannagar Kailashahar vide registered Kabala No. 247/1956, executed on 20.8.1956. The petitioner states that by virtue of the said purchase he has exclusive right, titles and interest to as well as possession of the D/ L and that at the time of his purchase the D/L was null in character. It is the further case of the petitioner that after purchasing the D/L, he developed the same by making it homestead and started construction thereon. He further states that he had already constructed three rooms building having double storied foundation on the D/L and the said construction is in the mid way. In the course of construction, he has incurred an expenditure of Rs. 1,00.000 so far. The petitioner also states that the respondent herein along with her two sons instituted a civil suit being Title Suit No. 21/2 001 before the learned Civil Judge (Junior Division), Kailashahar, North Tripura against him for declaration of title and other reliefs in respect of the same D/L, which is still pending. It is the case of the petitioner that the respondent and her son Junab Ali and one Mushahid All had tried to dispossess the petitioner of the said land in the month of November, 2002, which prompted him to initiate a proceeding under Section 144 of Cr.PC before the learned Sub-Divisional Magistrate. Kailashahar, North Tripura (hereinafter called 'Ld.SDM' for short). The Ld.SDM by the order dated 19.11.2002 in case No. 6(M)/2002 issued under Section 144(1) Cr.PC restrained the said Junab Ali and Quatab Ali from entering into the D/L and also fixed 27.11.2002 for filing of objection, if any, by the said Junab Ali and Qutab Ali.
The further case of the petitioner is that the respondent herein lodged a written complaint against him in respect of the D/L before the Ld.SDM alleging that the petitioner along with others have been trying to dispossess her of the D/L thereby apprehending breach of peace between the parties and claiming that unless the petitioner and his party were restrained, there would be serious breach of peace on the D/L. On the basis of this complaint, the Ld.SDM drew up a proceeding under Section 145 of Cr.PC against the petitioner bearing Case No. Misc. 3/2003 and directed both the parties to appear before him and to submit written statement, evidences etc. in support of their respective claim as respects the fact of actual possession of the subject of dispute. The Ld.SDM also in the same order came to the conclusion that the case was one of emergency and unless both the parties are restrained from entering into the land till the conclusion of the proceeding since peace and tranquillity might be affected in that locality. Accordingly, he passed an order under Section 146(1) of Cr.PC restraining both the parties from entering into the disputed land till conclusion of the proceeding. The Ld.SDM also directed the 0/C, Kailashahar P.S. to execute the order.
Being aggrieved by the order of the Ld.SDM, the petitioner approached the learned Sessions Judge, North Tripura, Kailashahar by way of revision petition, which was registered as Criminal Revision No. 3(1)/ 2003. The learned Sessions Judge by the order dated 26.3.2003 disposed of the revision petition declining to interfere with the order passed by the Ld.SDM. The learned Sessions Judge while disposing of the revision petition observed that no final decision was given by the Ld.SDM ; the Ld.SDM did it with a view to maintain peace and tranquillity ; the successful party might move the civil court for appropriate relief after conclusion of the proceeding under Section 145 of Cr.PC and that the order passed by the Ld.SDM was not a concluded order. The learned Sessions Judge however, observed that in view of pendency of the civil suit between the parties, there was no scope for allowing the proceeding under Section 145 of Cr.PC to continue ; whatsoever order passed by the Ld.SDM under Section 146(1) of Cr.PC was found to be just and proper and that there was no illegality and that the parties were directed not to enter into the suit land till disposal of the civil suit pending in respect of the same subject matter before the learned Civil Judge (Junior Division), Kailashahar, North Tripura. The learned sessions Judge also directed the learned Civil Judge (Junior Division) to dispose of the pending civil suit before him at an early date. It was with the aforesaid observation that the learned Sessions Judge disposed of the revision petition filed by the petitioner.
3. The case of the respondent as emerged from her written objection is that her husband, i.e., Riyaj Ullah had never sold the D/L to the said Subhash Ch. Dhar as alleged by the petitioner. She also denies that neither the said Subhash Ch. Dhar nor Paresh Ranjan Roy ever took possession of the D/L and claims that the subsequent purchase of the D/L by Paresh Ranjan Roy from Subhash Ch. Dhar and thence by the petitioner from the said Paresh Ranjan Roy are all the outcome of the fraudulent and fictitious Sale deed No. 247/1956 allegedly executed on 20.8.1956 by Tahir Miah, the husband of the respondent and another Riyaj Ullah. The respondent also claims that Riyaj Ullah never had any land at Bhagabannagar under Kailashahar P.S. It is the case of the respondent that she is a helpless old lady of 80 years and there is none to protect her with adequate security. She also claims that she had no knowledge of the sale deed dated 20.8.1956 and other subsequent deeds till 14.8.2001. It is the case of the respondent that taking advantage of the fraudulent sale deed, the petitioner and his party tried to forcibly dispossess her of the D/L.
4. I have heard Mr. P. R. Barman, learned counsel for the petitioner and Mr. A. Lodh, learned counsel for the respondent.
5. It is contended by the learned counsel for the petitioner that the Ld.SDM has caused serious prejudice and inconvenience to the petitioner by passing the impugned order. He further contends that when the order dated 19.11.2002 passed by the Ld.SDM under Section 144 of Cr.PC was still in force, there was no scope for drawing up a separate proceeding under Section 145 of Cr.PC in respect of the same D/L. In doing so, submits the learned counsel for the petitioner, the Ld.SDM committed patent error of law which has resulted in great miscarriage of justice. The learned counsel for the petitioner also submits that the impugned order passed by the Ld.SDM without determining who was in possession of the D/L and without hearing the petitioner is against the principles of natural justice and also without jurisdiction. It is also contended by the learned counsel for the petitioner that the learned Sessions Judge failed to exercise the jurisdiction vested in him by law by not taking into account the fact that the order passed by the Ld.SDM was without any basis and without complying with the provision of Sections 145 and 146 of Cr.PC.
6. On the other hand, Mr. A. Lodh, learned counsel for the respondent while supporting the impugned orders submits that when the revision petition filed by the petitioner has already been dismissed by the learned Sessions Judge, invoking the writ jurisdiction of this court under Article 227 of the Constitution of India would amount to a second revision petition which is forbidden by the Code of Criminal Procedure. He also submits that on the same principle, this is not a case in which this court should exercise its inherent power under Section 482 of Cr.PC. It is also submitted by the learned counsel for the respondent that the order passed under Section 146(1) of Cr.PC is an interlocutory order and does not call for interference by this court under Article 227 of the Constitution of India or under Section 482 of Cr.PC. According to the learned counsel for the respondent, the impugned orders do not suffer from any infirmity and as such no Interference is called for.
7. I have gone through the order dated 14.2.2003 passed by the Ld.SDM as well as the order dated 26.3.2003 passed by the learned Sessions Judge, North Tripura, Kailashahar. After considering the pleadings of the parties and the rival contentions of both the parties and also the impugned orders, I am of the view that the first question to be determined in this case is whether the impugned order dated 14.2.2003 is an interlocutory order, and if so, whether there is any scope for interference by this Court in exercise the jurisdiction under Article 227 of the Constitution of India and under Section 432 of Cr.PC.
8. In order to appreciate the points in controversy in this case, it will be useful to produce here under the provisions of Section 146 of Cr.PC :-
"146. Power to attach subject of dispute and appoint receiver. - (1) If the Magistrate at any time after making the order under Sub-section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof:
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, (2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908):
Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any civil Court, the Magistrate -
(a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the civil Court and shall thereafter discharge the receiver appointed by him ;
(b) may make such other incidental or consequential orders as may be just."
9. It may be noted that Sections 145 and 146 of the Code together constitute a claim for resolution of a situation where there is likelihood of breach of peace and Section 146 should not be separated from Section 145 and it can only be read in the context of Section 145 of Cr.PC. From the provision of Section 146 of Cr.PC as reproduced above, it becomes obvious that attachment can be made by the Ld.SDM or by an Executive Magistrate if : (1) the Magistrate considers the case to be one of emergency ;
(2) the Magistrate finds that none of the parties was in possession as is referred to in Section 145, or (3) the Magistrate is unable to satisfy himself as to which of the contending parties was in possession of the subject of dispute. The scheme of the Act clearly contemplates that before attachment is made under either of the last two circumstances envisaged, the Magistrate must peruse the evidences produced before him including written statement of the parties. It is only after he finds that none of the parties was in possession of the disputed land or after he is unable to satisfy himself as to which of the contending parties was in possession of the subject of dispute that the Magistrate has the jurisdiction to pass an order of attachment end in that eventuality the order of attachment will be operative till the rights of the parties thereto are determined by a competent Court. Since in this case we are concerned with an order purportedly passed under the first circumstance contemplated, the circumstance under which such power should be invoked may be examined. Since attachment of property has the effect of causing, serious inconvenience and prejudice to at least one of the parties such emergency measures should be taken only in exceptional cases and an attachment should not almost as a rule follow an order under Sub-section (1) of Section 146 of Cr.PC. 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 already indicating how, in the interest of maintenance of peace, an ex parte order of attachment was necessary and when insistence of proper service of notice to the parties may be dispensed with. It may be noted that the existence of the ingredients necessary for passing an order under Section 145(1) of Cr.PC would not automatically attract the provisions of Section 146(1) for attachment of property. Therefore, the Magistrate must satisfy himself as to whether emergency exists in spite of the order under Section 145(1) of the Code before he passes an order of attachment under Section 146 of the Code. The word "emergency" mentioned in Section 146(1) of the Code contemplates the situation completely different from one in which there is apprehension of breach of the peace, which is one of the basic legal necessities for initiating a proceeding under Section 145 of the Code. The fact that ordinarily the situation has arisen is not enough. Mechanical re-production of certain terms as used in the statute cannot justify a finding unless there are materials in support it. The Magistrate must give reasons as to why he thought it necessary to pass the order of attachment on the ground of emergency. However, even though the order of attachment does not contain reasons, or is not explicit enough, if there are materials on record on which the Magistrate was satisfied about emergency, the order would not be struck, down.
10. The next point to be considered is whether an order of attachment passed on the ground of emergency completes the proceeding under Section 145(1) of Cr.PC. If it is held that an attachment made on emergency completes the proceeding then the order can be said to be an interlocutory order. In the case of attachment under the second and third situation contemplated under Section 146(1) or Cr.PC the order being operative untill the matter is finally decided by the competent Court, there can be no doubt that such an order is not an interlocutory order.
In Mathurelal v. Bhanwarlal and Anr., reported in AIR 1980 SC 242, the Hon'ble Apex Court held that the Magistrate's jurisdiction does not come to an end as soon as an attachment is made on the ground of emergency. In para 4 of the said Judgment, it is held as under :-
"In a case of emergency, a Magistrate may attach the property, at any time after making the preliminary order under Section 145(1). There is no express stipulation in Section 146 that the jurisdiction of the Magistrate ends with the attachment. Nor is it implied from it. The obligation to proceed with the inquiry as prescribed by Section 145, Sub-section (4) is against any such implication. The only provision for stopping the proceeding and cancelling the preliminary order is to be found in Section 145(5) and it can be on the ground that there is no longer any dispute likely to cause a breach of the peace. An emergency is the basis of attachment under the first limb of Section 146(1) and if there is an emergency, no one can say that there is no dispute likely to cause a breach of the peace."
In Smt. Premlata and Anr. v. Ram Lubhaya and Ors., reported in 1978 Cri. L.J, 1822, the Allahabad High Court observes as follows :
"Section 146(1) shows that an order of attachment can be passed by the Magistrate on the existence of either of the following three conditions :-
1. When after passing a preliminary order under Section 145(1) he considers the case one of emergency,
2. When he decides (obviously after taking the entire evidence) that none of the parties was in possession on the date of the preliminary order, and
3. When in spite of the evidence being recorded he is unable to satisfy himself as to which of the parties was in possession of the disputed land on the date of the preliminary order.
The first order of attachment would obviously be passed during the continuance of the proceedings under Section 145, if the Magistrate considers an emergency has arisen. The emergency attachment is just a protective measure to prevent breaking of heads till such time as the Magistrate gives his final decision under Section 145(4). Such an order passed under the first clause of Section 146 will be an interlocutory order, 1978 Cri. L.J. 356 Rel. on."
The aforesaid views are supported by another Hon'ble Judge of the Allahabad High Court in Ashfaq Hussain v. Entram Hussain and Ors., reported in 1991 Cri. L.J. 747.
11. In the light of the views expressed by the Apex Court and various High Court in a catena of decisions, it is by now a settled law that the order of attachment passed on emergency under Section 146(1) of Cr.PC does not terminate the proceeding under Section 145 of Cr.PC; that the Magistrate is to proceed with and conclude the proceeding of Section 145 of Cr.PC pending before him in accordance with the provision of Section 145 of Cr.PC and that the order of attachment on emergency is an interlocutory order. The next question arises as to whether revision lies against an interlocutory order.
12. For better understanding of the point involved here, the provision of Section 397 of Cr.PC may be reproduced hereunder :-
"397. Calling for records to exercise powers of revision. - (1) The High court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation. -All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purpose of this sub-section and of Section 398.
(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the sessions Judge, no further application by the same person shall be entertained by the other of them."
13. It is thus clear from Section 397(2) of the Code that no revision lies against an interlocutory order passed in any appeal, inquiry, trial or other proceeding. In Ashfaq Hussain's case (supra) and also Smt. Premlata's case (supra) it is held that an order of attachment passed on emergency under Section 146(1) of the Code being an interlocutory order, no revision petition shall lie. In that view of the matter there can be no doubt that a revision petition does not lie against an order of attachment passed on emergency under Section 146(1) of the Code.
14. I now proceed to examine the second contention of the learned counsel for the respondent that since the revision petition filed by the petitioner has been dismissed by the learned Sessions Judge, the instant petition cannot be entertained under Article 227 of the Constitution of India or under Section 482 of Cr.PC as it would amount to a second revision which is forbidden by law. A bare reading of Section 397(3) of the Code admittedly shows that where earlier revision application is dismissed by a sessions Judge, the High Court cannot entertain a second revision application. But the question is whether in view of the bar imposed by Section 397(3) of the Code, it can be said that the provision of Section 397(3) of the Code can override the extraordinary jurisdiction of the High Court under Article 227 of the Constitution of India or of the inherent power of the High Court under Section 482 of the Code to prevent abuse of the process of any Court or for securing the ends of justice. The scope and ambit of Article 227 of the Constitution of India has come up before the Hon'ble Apex Court for consideration in the context of the power of revision under Section 115 of CPC as amended in 1999 in Surya Dev Rai v. Ram Chander Rai and Ors., reported in 2003 AIR SCW 3872. The Hon'ble. Apex Court held therein that the curtailment of revisional jurisdiction of the High Court does not take away - and could not have taken away - the constitutional jurisdiction of the High Court to issue a writ of certiorari to a Civil Court nor is the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self-discipline and practice which are well settled. The Hon'ble Apex Court further held that the supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the Subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. The Hon'ble High Court has also held that such writ power is not available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave (sic) or gross failure of justice has occasioned thereby. The Hon'ble Apex Court further explained that a patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view the error cannot be called gross or patent. Even through the observation made by the Hon'ble Apex Court is in the context of Code of Civil Procedure, there can be no shadow of doubt that the principles laid down therein are equally applicable in the context of Code of Criminal Procedure. However, reading and re-reading of the aforesaid observation will show that it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution since the power of superintendence is not meant to circumvent a statutory law [see State v. Nabajot Sandhu, reported in (2003) 6 SCC 641]. From the above observation of the Hon'ble Apex Court it is abundantly made clear that the provision of Sub-sections (2) and (3) of Section 397 of Cr.PC cannot curtail the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India provided the conditions explicit or implicit therein for invoking such jurisdiction are satisfied.
15. Coming now to the applicability of Section 482 of Cr.PC the words "Nothing in this Code ......." amply makes clear that to give effect to any order under the Code or to prevent abuse of the process of any Court or to secure the ends of justice, none of the provisions of the Code can put any on the inherent power of the High Court to pass any order. If any authority is required to be cited in support of this view of mind, I may cite the case of Puran v. Rambilash and Anr., reported in (2001)6 SCC 338, wherein the Hon'ble Apex Court held as follows :-
"Even if it is an interlocutory order, the High Court's inherent jurisdiction under Section 482 is not affected by the provisions of Section 397(3) Cr.PC. That the High Court may refuse to exercise its jurisdiction under Section 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice, the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified."
16. The above observation of the Hon'ble Apex Court is a complete answer to the contentions of the respondent that this Court in exercise of its inherent power under Section 482 of the Code cannot interfere with the order passed by the learned Sessions Judge in a revision petition as that would amount to a second revision petition which is forbidden by the Code. But I may hasten to add that this power, like the power under Article 227 of the Constitution, must be used sparingly and in exceptional circumstances.
17. Having discussed the contentions issue of jurisdiction raised by the learned counsel for the respondent, I may now proceed to examine the legality of the impugned orders passed by the learned Sub-Divisional Magistrate and the Ld. Sessions Judge and determine whether the petitioner has made out exceptional circumstances for interference by this Court with the same. Some undisputed facts may be noted first. The impugned order dated 14.2.2003 is in two parts. The first part relates to an order/preliminary order passed Section 145(1) of the Code while the second part deals with an order of attachment under Section 146(1) of the Code passed purportedly on the ground of emergency. In so far as the first part of the impugned order is concerned, the petitioner cannot possibly have any serious grievance. So, it is with respect to the second part of the impugned order that we are concerned in this writ petition. It may be noticed that the impugned order of attachment was passed by the Ld.SDM without hearing the petitioner, and was also passed on the basis of his findings that it was a case of emergency. It is also an admitted position that the Ld.SDM had earlier passed a prohibitory order Under Section 144 of the Code restraining the son of the respondent herein, namely, Md. Junab Ali, and another from entering into the D/L as he had apprehended that breach of the peace was imminent since they tried to take over possession of the same forcibly. It is also a fact that a civil suit, i.e., Title Suit No. 21 of 2001 is pending between the parties in respect of the D/L. 18 Before proceeding further, the second point worth mentioning is regarding the nature of possession claimed by both the parties in respect of the D/L. The petitioner in para 4 of the writ petition claims that he has already constructed three rooms building having double storeyed foundation on the D/L and the said construction is in the mid-way, for which he has already incurred an expenditure of Rs, 1,00,000. The respondent denies this statement of the petitioner but does not mention in her written objection the manner of her possession over the D/L. As pointed out earlier, attachment of property has the effect of causing serious inconvenience including dispossession to at least one of the parties and as such, emergency measures should be taken only in exceptional cases and an attachment should not almost as a rule follow an order Under Section 146(1) of the Code. Therefore, before exercising this emergency power, a duty is cast upon the Magistrate to satisfy himself if there is any emergency which is different from the satisfaction that there is an apprehension of breach of the peace. In ordering an attachment of property, the Magistrate is expected to and must apply his mind to the facts of the case and act with caution and responsibility. He should not act as a mere tool in the hands of a party desiring attachment with some ulterior notice. Mere finding that apprehension of breach of the peace exists is not enough because that finding is necessary even when an action is being taken Under Section 145(1) of the Code. The tern "emergency" literally means "pressing necessity" which may occur when breach of the peace is imminent.
19. In the instant case, the Ld.SEM by the order dated 19.11.2002 (Annexure-D) had earlier promulgated an order Under Section 144(1) of the Code against the son of the respondent and another restraining them from entering the D/L. It may be noted that the said Junab Ali is one of the plaintiffs in Title Suit No. 21 of 2001 and that the respondent herein is the Plaintiff No. 3 of the said suit. Consequently, it is not difficult to hold that the said Junab Ali is a part and parcel of the present dispute. It may also be noticed that the said Junab Ali was directed by the Ld.SDM to submit an objection, if any, on 27.11.2002. When the Ld.SDM had already found a prima facie case of possession of the D/L by the petitioner, which prompted him to pass the said prohibitory order against the said Junab Ali, it is not understood as how he reversed his prima facie finding of possession in favour of the petitioner in a matter of 2/3 months without hearing him and thence passed the impugned order of attachment against him. It is true that it is not ordinarily mandatory to hear the parties before issuing an order of attachment on the ground of emergency but considering the fact that the Ld.SDM was already seized with the matter in a proceeding Under Section 144 of the Code, issuing the order of attachment without hearing the petitioner on the facts and circumstances of this case violates the principles of natural justice. Furthermore, apart from the written petition of the respondent, there does not appear to be any materials on record to show that it was a case of emergency. Even though police report is not mandatory for invoking this emergency provision, the nature of the case as unfolded from above would have justified the Ld.SDM to call for such report for enabling him to form an opinion that it was a case of emergency warranting an order of attachment in respect of the D/L.
20. That apart, in coming to the conclusion that it was a case of emergency, the Ld.SDM appears to have acted hastily, that too, based on the one-sided version of the respondent. An impression is likely to be created that the Ld. SDM was acting as a mere tool in the hands of the respondent desiring attachment without any evidence in support of her claim to possession over the D/L. To compound the problems, the Ld. Sessions Judge while dismissing the revision petition of the petitioner has made an observation to the effect that in view of the pendency of a civil suit between the parties, there was no scope for allowing the proceeding Under Section 145 of the Code to continue. This in effect and substance terminates the said proceeding, which is contrary to the law laid down by the Apex Court cited earlier. By making this observation which is binding upon the Ld.SDM, the Ld. Sessions Judge has exceeded his jurisdiction thereby depriving the right of the petitioner to establish his claim to possession of the D/L before the Ld.SDM. Accordingly, both the impugned orders of the Ld.SDM and the Ld. Sessions Judge in so far as the order of attachment are concerned, suffer from non-application of mind and jurisdictional error, which resulted in gross injustice to the petitioner.
21. In the result, the impugned orders dated 14.2.2003 of the Ld.SDM and dated 26.3.2003 of the Ld. Sessions Judge are hereby quashed. The Ld.SDM, Kailashahar, is hereby directed to continue and dispose of the proceeding Under Section 145 Cr.PC, i.e., Case No. Misc./3/03 after allowing the parties to file written Statements, if not already filed, and to adduce evidence In support of their case and that too within a period of 4 months from today. Liberty is given to the Ld. SDM to consider whether an order of attachment is still called for after hearing the parties. It is, however, made clear that hearing of the parties may be dispensed with if there is imminent danger of breach of peace between the parties on the D/L warranted by the facts and circumstances of the case duly recorded by him.
22. The writ petition is allowed and disposed of to the extent indicated above. There shall be no order as to cost.