Gurdial and ors. vs State of Punjab and ors.

I.S. Tiwana, J.(Oral)

These two Cri.Misc. Nos. 3100 M and 3582M of 1987 arise out of the same set of facts and are thus being disposed of together.

During the course of proceedings under section 145 Cr.P.C. initiated at the instance of the respondents by filing an application before the SubDivisional Magistrate, Nabha, the learned Magistrate directed the attachment of the disputed property, i.e., Khasra Nos. 515, 521, 517, 522 and 523, measuring 6 bighas and 5 biswas, vide his order dated June 4,1986, Later on a cause having been shown by the petitioners in response to the notice served on them under section 145(1) of the Code, the attachment, however, was restricted to only 12 biswas of land, i.e. 9 biswas out of Khasra No. 522 and 3 biswas out of Khasra No. 517 vide his order dated September 5, 1986. Qua the rest of the land the attachment was vacated. Again on an application filed by the responders on May 22, 1987, the learned Magistrate altered the order dated September 5, 1986 and again attached the entire Jind or Khasra No. 522 for the reason that the said party apprehended breach of peace qua the said property. The petitioners impugn all the three attachment orders referred to above. primarily on the ground that the SubDivisional Magistrate had no jurisdiction or jurisdiction to carry on the proceedings under sections 145/146, Cr. P.C for the reason that the parties were already litigating about their rights before the civil Court. Further it is beyond dispute that the entire suit property, i.e. 6 bighas and 5 biswas is a joint property the petitioners and respondents having shares in that.

Having heard the learned counsel for the petitioners at some length I find that there is lot of merit in the stand taken by the petitioners. By now it is well laid down that no proceedings under section 145 Cr.P.C. can be launched qua joint properties of the parties. Besides this it is equally well laid down that when the parties are already litigating in the civil Court, the Magistrate would restrict his hands and would not initiate parallel proceedings under section 145 Cr.P.C.

In the light of the above noted factual and legal position I find that the continuance of the proceedings under section 145 Cr. P C. cannot possibly be sustained. I, therefore, quash the proceedings pending in the Court of the SubDivisional Magistrate, Nabha including the above noted three impugned orders.