Babu Mistri vs State of Rajasthan and Others

K.D. Sharma, C.J.—Heard Mr. B. Singhvi and Mr. M. L. Kala learned Counsel for the petitioner and Mr. M.C. Bhoot learned Counsel for non--petitioner No 4 and Dr. S. S. Bhandawat Public Prosecutor for the State.

This is an application u/s 482 Cr. P.C. for setting aside the order of the City Magistrate Jodhpur dated 5.10.82 and for quashing the notice given by the Tehsildar to the petitioner on. 11.0.82 in pursuance of the aforesaid order of the City Magistrate. From a bare perusal of the impugned order of the City Magistrate dated 5.10.82 it appears that he passed an order u/s 146 Cr. P.C. in a proceeding initiated upon complaint by Akhtar Bai Hinzara against Babu Mistry petitioner and appointed the Tehsildar Jodhpur a Receiver to take into his possession the property in dispute for management. It is not disputed before me that the learned City Magistrate passed the impugned order u/s 146 Cr. P.C. Without affording proper opportunity to the petitioner of being heard. It will not be out of place to mention that the impugned order was not passed at the time of drawing the preliminary order. It was passed after the parties had submitted their respective claims as respects the actual possession of the disputed property. At the time of passing such an important order as envisated by section 146 Cr. P.C. the City Magistrate ought to have given opportunity to the petitioner to submit his objections and to lead his evidence. In this view of the matter, the impugned order passed by the City Magistrate u/s 146 Cr. P.C. on 5-10-82 and the notice of the Tehsildar given in pursuance there of are quashed and the case is sent back to the City Magistrate for passing an appropriate order after hearing the parties and after taking down their evidence if any. The petition u/s 482 Cr. P.C. is decided accordingly.