Hira Lal vs State of Haryana

S.S. Dewan, J.

In this petition under S. 482 of the Code of Criminal Procedure, 1973 (for short, the Code), Hira Lal has sought quashing of the preliminary order dated 31.1.1983 passed by the SubDivisional Magistrate, Narnaul, (copy annexure P.1) vide which the proceedings against the petitioner were initiated under S. 145 of the Code and the order (annexure P.2) attaching his property under S. 146(1) of the Code.

Primarily, the grievance of the petitioner is that the preliminary as well as the attachment orders were passed against him without hearing him. Feeling aggrieved by the orders of the trial Magistrate, the petitioner went up in revision and the same was dismissed by the Additional Sessions Judge, Narnaul on 21.2.1983, holding those orders to be interlocutory orders. It is alleged that the petitioner then filed an application before the SubDivisional Magistrate, Narnaul, challenging the validity of his orders but the same was rejected by him on March 10, 1983. Feeling dissatisfied, he has now invoked the inherent powers of this Court by filing this petition under S. 482 of the Code.

At the outset, Mr. Gopi Chand, learned counsel for respondent No. 2, has raised an objection that the orders impugned in this petition being interlocutory orders, cannot be challenged in this petition. The submission made by the learned counsel seems to be misconceived. An order calling upon the petitioner to join the proceedings under S. 145 of the Code and attaching the property in dispute during the course of those proceedings, cannot be styled as interlocutory orders. In this view, I am fortified by a decision in Amar Nath and others v. State of Haryana and others, 1978 SCR 222.

I have perused the impugned orders and I find that the learned SubDivisional Magistrate has passed the impugned orders, (copies annexures P.1 and P.2) without giving any opportunity of hearing to the petitioner. It is also nowhere mentioned in these orders that it was a case of an emergency warranting the attachment. Unless such satisfaction is recorded, an order of attachment of the land in dispute cannot be passed an a matter of routine or as a follow up step to an order under S. 145(1) of the Code, Secondly, the attachment can be permitted to remain so long as the matter is decided by a Court of competent jurisdiction and the learned Executive Magistrate is that competent Court for the purpose so long as the emergent attachment continues. It is only on the recording of his finding that he was unable to determine as to which of the parties was in possession of the property, or that none of the parties was so in possession that the same has to be kept attached till the decision by a Court of competent jurisdiction which means the Court other than the Court of the Executive Magistrate.

For the reasons stated, all the impugned orders passed by the SubDivisional Magistrate, Narnaul, are quashed and this petition is allowed. It would, however, be open to the learned Magistrate to pass fresh orders under Ss. 145 and 146 of the Code of consideration of the material produced by the parties but not in a mechanical fashion. The parties, through counsel, are directed to appear before the SubDivisional Magistrate, Narnaul, on 3.10.1983.