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Sunday, January 12, 2014

Sec.145 Cr.P.C. - sub-divisional magistrate - on the report of circle inspector straight away passed attachment order without issuing any notices to the parties and also pending civil suit - is bad and as such the High court in criminal revision set aside the orders of sub-divisional Magistrate/sub- collector orders as illegal = Ponuganti Raj Gopal Rao The State of A.P. and two others = 2011 ( FEB. VOL - 2 ) JUDIS.NIC.IN/ JUDIS _ ANDHRA / FILE NAME =8068

Sec.145 Cr.P.C. - sub-divisional magistrate - on the report of circle inspector straight away passed attachment order without issuing any notices to the parties and also pending civil suit - is bad and as such the High court in criminal revision set aside the orders of sub-divisional Magistrate/sub- collector orders as illegal =

I am in entire agreement with the submissions made by the learned counsel for
the petitioner.
A detailed procedure is envisaged under Section 145 Cr.P.C, wherein it is
nowhere mentioned that the Sub-Divisional Magistrate has power to order
attachment of properties for interim custody.  
The only order that can be passed
by the Sub-Divisional Magistrate is an order of attachment after following the
procedure contemplated under Section 145 Cr.P.C.  
Section 145(8) Cr.P.C is extracted hereunder:
"If the Magistrate is of the opinion that any crop or other produce of the
property, the subject of dispute in a proceeding under this section pending
before him is subject to speedy and natural decay, he may make an order for the
proper custody or sale of such property, and upon the completion of the inquiry,
shall make such order for the disposal of such property, or the sale proceeds
thereof, as he thinks fit.
The above provision of law does not mean that he can order interim attachment of
the property.  It is only in the interest of justice, he may require the crop,
etc. to be harvested, sold and kept the sale proceeds thereof in deposit.
Section 146 Cr.P.C. deals with power to attach subject of dispute and to appoint
receiver.  It comes into operation only when an order of attachment has already
been passed.  
From a perusal of the impugned order, it is clear that the Sub-
Divisional Magistrate received a report from the Circle Inspector of police with
regard to the registration of the Crimes on 10.01.2011 apprehending law and
order problem.  Based on the report submitted by him, the Sub-Collector & Sub-
Divisional Magistrate straightaway passed the impugned order, which in my
considered opinion, is bad.  
Further, in a catena of decisions, it is held that
when the matter is purely civil in nature and a competent civil Court is seized
of the matter, the Sub-Divisional Magistrate cannot issue an order under Section
145 Cr.P.C.  Moreover, as contended by the learned counsel for the petitioner, a
suit has already been instituted for settlement of disputes in respect of the
lands in question, and the same is pending adjudication before the learned
Senior Civil Judge.
        In the circumstances, this Court has no hesitation to come to the
conclusion that the impugned order is bad in law, which is liable to be set
aside.

2011 ( FEB. VOL - 2 ) JUDIS.NIC.IN/ JUDIS _ ANDHRA / FILE NAME =8068

THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA          
Crl.R.C. No. 107 of 2011

07-02-2011

Ponuganti Raj Gopal Rao

The State of A.P. and two others

Counsel for the Petitioner:Sri M.V. Hanumantha Rao

Counsel  for the Respondents:  Sri E.Venkat Reddy

:JUDGMENT:-  

This Criminal Revision Case is directed against the order No.D/237/2011, dated
20.01.2011 passed by the Sub-Collector & Sub-Divisional Magistrate, 
Mancherial attaching the lands of an extent of
Ac.2.23 guntas and Ac.2.22 guntas belonging to the members of three parties as
shown in the order on the ground that there is breach of peace and tranquility.

The impugned order reveals that on the basis of the complaint given by the
petitioner herein, who is one of the persons of the 2nd Party in the impugned
order, the 2nd respondent-Circle Inspector of Police, Mancherial, on 10.01.2011,
registered Cr.No.24 of 2010 of CCC Naspur and Cr.No. 9 of 2011 of P.S.
Mancherial police station with regard to the land dispute in Sy.Nos.40/A & 40/A
of Naspur Sivar, Mancherial Mandal, and apprehending that there would be breach
of peace, reported the matter to the Sub-Collector and Sub-Divisional
Magistrate, Mancherial for initiating necessary action under Section 145 Cr.P.C.

In the light of the complaint and the apprehension that there would be law and
order problem, the Sub-Collector passed an order dated 20.01.2011 attaching the
lands in question  Challenging the order, the petitioner has filed this Criminal
Revision Case.
This Court, on 25.01.2011, while admitting this revision case, suspended the
impugned order for a period of six weeks.  Now, one of the persons of the 1st
party in the impugned order, has filed two applications in Crl.R.C.M.P. No. 387
of 2011 to implead him as respondent No.4 in the Criminal Revision Case and
Crl.R.C.M.P. No. 388 of 2011 seeking to vacate the interim order dated
25.01.2011.
The main contention of the learned counsel for the petitioner is that the Sub-
Collector & Sub-Divisional Magistrate, Mancherial ought not to have passed the
impugned order for two reasons.
One is that the order is passed straightaway
without there being any notice, which is contrary to the provisions contemplated
under Section 145 Cr.P.C.
The second reason is that already a suit in O.S. No.
16 of 2010 has been instituted by P. Raj Gopal Rao, who is one of the persons of
the 2nd party in the impugned order, and the same is pending adjudication on the
file of the Senior Civil Judge, Mancherial wherein the 1st party and some of the
persons of the 3rd party are shown as defendants in the suit.
Heard the learned counsel for both the parties and perused the material placed
on record.
I am in entire agreement with the submissions made by the learned counsel for
the petitioner.
A detailed procedure is envisaged under Section 145 Cr.P.C, wherein it is
nowhere mentioned that the Sub-Divisional Magistrate has power to order
attachment of properties for interim custody.  
The only order that can be passed
by the Sub-Divisional Magistrate is an order of attachment after following the
procedure contemplated under Section 145 Cr.P.C.  
Section 145(8) Cr.P.C is extracted hereunder:
"If the Magistrate is of the opinion that any crop or other produce of the
property, the subject of dispute in a proceeding under this section pending
before him is subject to speedy and natural decay, he may make an order for the
proper custody or sale of such property, and upon the completion of the inquiry,
shall make such order for the disposal of such property, or the sale proceeds
thereof, as he thinks fit.
The above provision of law does not mean that he can order interim attachment of
the property.  It is only in the interest of justice, he may require the crop,
etc. to be harvested, sold and kept the sale proceeds thereof in deposit.
Section 146 Cr.P.C. deals with power to attach subject of dispute and to appoint
receiver.  It comes into operation only when an order of attachment has already
been passed.  
From a perusal of the impugned order, it is clear that the Sub-
Divisional Magistrate received a report from the Circle Inspector of police with
regard to the registration of the Crimes on 10.01.2011 apprehending law and
order problem.  Based on the report submitted by him, the Sub-Collector & Sub-
Divisional Magistrate straightaway passed the impugned order, which in my
considered opinion, is bad.  
Further, in a catena of decisions, it is held that
when the matter is purely civil in nature and a competent civil Court is seized
of the matter, the Sub-Divisional Magistrate cannot issue an order under Section
145 Cr.P.C.  Moreover, as contended by the learned counsel for the petitioner, a
suit has already been instituted for settlement of disputes in respect of the
lands in question, and the same is pending adjudication before the learned
Senior Civil Judge.
        In the circumstances, this Court has no hesitation to come to the
conclusion that the impugned order is bad in law, which is liable to be set
aside.
        In the result, this Criminal Revision Case is allowed setting aside the
impugned order dated 20.01.2011 passed by the Sub-Collector & Sub-Divisional
Magistrate, Mancherial.

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