S.B. CRIMINAL MISC. PETITION NO. 1601/2008
Date : 18.12.2008
HON'BLE MR. C.M. TOTLA, J.
Mr. C.P. Soni for the petitioner.
Mr. V.R. Mehta, P.P.
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Learned Public Prosecutor accepts notice on behalf of State.
Petitioners request reversal of Magistreal order dated
29.8.08 affirmed by revisional court’s order dated 19.11.08. According to
order, initiating proceedings under Section 145 and 146(1) Cr.P.C,
Executive Magistrate attached and appointed SHO as receiver.
Learned counsel for the petitioner argued that (i) no
preliminary order under Section 145(1) Cr.P.C is drawn (ii) no
apprehension of breach of peace exists – in any case learned Magistrate
did not record or reached to conclusion of apprehension of breach of
peace (iii) petitioners not given opportunity of hearing (iv) civil suit is
pending before Civil court. (v) respondents are claiming possession on the
basis of certain alleged agreement entered with father of petitioners no.1
& 2 (vi) for individual disputes, such proceedings contrary to law (vii)
conditions essential for initiating proceeding under Section 145 cr.P.C are
lacking. In support of contentions, reliance placed on decisions :
(i) 2003(3) Criminal court cases 306 Gopichand Vs. Mohd. Hanif
(ii)1977 Cr.LR. Page 667 Narayan lal Vs. Shankar lal
(iii)2002(3) Criminal Court cases Page 409 Ramswaroop Vs. State
(iv)2002(2) Criminal court cases Page 503
Learned Public Prosecutor stated that petitioners may raise
all grounds and objections before the Magistreal court as notices are
issued to them.
Considered arguments and perused the impugned order and
also order of revisional court dated 19.11.08. The civil suit is said to be
proceeding but on behalf of petitioner, it is admitted that no interim or
otherwise order by civil court is in effect.
Having looked at impugned order, it appears that learned
Magistrate perusing police complaint and describing nature and type of
dispute, reached to the conclusion that for possession, every
apprehension is of breach of peace and proceeding under Section 145
Cr.P.C. ordered attachment and appointment of receiver – directed further
proceedings on 17.09.08. Learned Sessions considering all the aspects in
detail upheld the order.
From the order dated 29.08.08, it is clear that the case is
posted for next hearing. The provisions of Section 145, 146 Cr.P.C. are
very clear. As the case was posted for further hearing and petitioners
were not present at the time of impugned order, obviously procedure
prescribed under Section 145 and related provisions are to follow. As
held by Hon’ble Supreme Court in 2002(2) Criminal Court Cases SC 187 ,
if civil suit for injunction is pending, this is for the parties to approach civil
court for interim order.
Considering above, as the petitioners can raise all the
grounds before the Executive Magistrate, the petition is liable to be
rejected.
Accordingly, rejecting the petition, it is directed that
Executive Magistrate shall consider objections and aspect put up by the
petitioners without in any way influenced by earlier orders including this
one. Petitioner may submit his objections on date fixed for proceedings or
in January, 2009.
With these observations, the misc petition stands decided.
(C.M. TOTLA), J.