Surja Ram vs Hassan and Others

G.K. Sharma, J.—This revision Petition is directed against the orders dated 29th August, 1981 & 31st Dec. 1981 passed by the Executive Magistrate Parbatsar.

Petitioner Surjaram submitted a complaint under Sections 145 & 146 Cr.P.C. in the court of Executive Magistrate. Parbatsar on 12th May, 1981. The learned Magistrate on that date passed a preliminary order and appointed the Tehsildar, Makrana as Receiver for this property, who asked to submit (his report by 22nd May, 1981. From the copies of the order-sheets, it reveals that no report was submitted by the Tehsildar upto 6th June, 1981. Then the learned Magistrate fixed 6th July, 1981 for seeing the site and on that date without giving any notice to the petitioner or his counsel, the site was inspected and be inquired from the neighbours as to who was in possession of the disputed property. Thereafter, without recording evidence of the parties the learned Magistrate passed order on 22nd July, 1981 asking both the parties to lead evidence From the order sheet of that date, it seems that no information was given to the petitioner about submitting his evidence. Thereafter evidence was closed by the learned Magistrate and on 29th Aug , 1981 he passed the order dismissing the complaint under Sections 145 & 146 Cr.P.C. Thereafter, without giving any notice to the complainant, the learned Magistrate passed another order on 31st Dec, 1981 by which he directed the Receiver to return the attached property to non petitioners Nos. 1 to 3.

Mr. Joshi argued that the entire proceedings conduct by the learned Magistrate, are illegal and against the provisions of Sections 145 & 146 Cr.P.C. According to him, it was the duty of the learned Magistrate to have given an opportunity to both the sides to lead their evidence, and decide as to which party was in possession of the disputed property within 2 months proceeding to the passing of the preliminary order, and thereafter hearing both the sides he should have decided about he possession over the disputed property. In this case, the learned Magistrate has not followed the procedure laid down in Sections 145 & 146, Cr.P.C.. It was also argued by him that without giving a notice to the petitioner, the matter was disposed of and the learned Magistrate ordered to deliver attached property to non-petitioners Nos. 1 to 3 and so his order is quite illegal.

Considered the arguments and perused the order sheet as well as the order of the lower court. It seems the learned Magistrate did not care to look into the provisions Sections 145 & 146 Cr.P.C. Atleast, he should have gone though these sections before deciding the complaint under Sections 145 & 146 PC and passing the order delivering the attached property. The entire proceedings and its conduct are illegal and not according to provisions of Sections 145 & 146, Cr.P.C. The Executive Magistrate atleast, should have gone though the provisions of the Act, before passing an order. It is very unfortunate that these Executive Magistrate do not care to log into the provisions of law and decide matters arbitrarily as they are passing an executive order.

In the result the revision petition is. accepted. The case is remanded back to the learned-Executive Magistrate with the direction that he should at lead the provisions of Sections 145 & 146 Cr.P.C. and apply his mind while disposing of the complaint. He should grant opportunities to both the parties to lead their evidence over the disputed property, and after hearing both the sides he should decide the matte afresh. The order of dated 29th Aug. 1981 31st Dec. 1981 are hereby quashed.