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Criminal Revision No. 641 of 1,969, decided on 3^rd July 1969.

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S. 145(1), (4) Attachment-Court attaching property by merely referring to apprehension entertained by applicant without, stating its satisfaction and grounds as to existence of dispute likely to cause breach of peace nor considering it a case of emergency-Impugned order, held, not in conformity with requirements of law and set aside.

Muhammad Ismail for Petitioner.

Rafiq Butt for Respondent.

This order will dispose of Criminal Revision No. 641 of 1969 filed by Muhammad Amin petitioner against Muhammad Jamil, impugning the order passed by Mirza Ghulam Murtaza Birlas, Magistrate Ist Class, Gujrat, on the 26th May 1969. It arose hi the following circumstances.

2(a). The dispute between the parties relates to possession of House No. 215, Mohallah Chiraghpura, Ward No. 12, Lala Musa. On the 19th June 1968, Muhammad- Jamil filed a complaint under section 145, Cr. P. C. against Mst. Iqbal Begun and Muhammad Amin, alleging that on the 4th June 1968, they with the help of certain other persons, had dispossessed his (Muhammad Jamil's) mother of the said house and that there was apprehension of breach of the peace. Ch. Muhammad Zafar Yasin, Magistrate, who was dealing with the complaint, recorded the statements of the complainant and two witnesses and passed the following order

I have heard complainant's counsel and also gone through the judgment of the D. S. C., Gujrat, produced by the complainant, Issue notice to the other party under section 145, Cr, P. C. for 16-7-68."

Mst. Iqbal Begun preferred Criminal Revision No. 712 of 1968 urging that the order passed by the learned Magistrate did not indicate that he' was satisfied that a dispute likely to cause a breach of the peace existed concerning the said house, with the result that the said order was bad in law. By judgment dated the 19th November 1968, the said 'order was quashed for the reason that the learned Magistrate failed to record that he was so satisfied and further had failed to state the grounds of his being so satisfied. The case was remanded for fresh proceedings in accordance with law.

(b) Thereafter, the case was made over to Mr. Ghulanx Murtaza Birlas, Magistrate. The learned Magistrate was not able to proceed on with the case for one reason or the other on various dates fixed for hearing of the case. On the 14th May 1969, Muhammad Jamil applied that, for reasons stated in the application, the house in dispute should be attached.

(c) On 26th May 1.969, the learned Magistrate recorded the statement of Muhammad Jamil and thereafter passed the following two orders

(i) An order in vernacular substantially to the following

"Muhammad Jamil filed an application under section 145, Cr. P. C. His statement has been recorded. He states that the respondent wants to dismantle the house in dispute and to misappropriate the material and that thus there is a, likelihood of immediate breach of the peace. It is, therefore, ordered that the house in dispute be attached forthwith until further orders and the petitioner is directed to produce evidence in support of the application on the 17th June 1969."

(ii) the following order in English

"In the light of above statement, there seems to be an immediate apprehension of breach of peace on the possession of the disputed house. It is, therefore, ordered under section 145(4), Cr. P. C. that the disputed house be attached pending final decision of the application under section 145, Cr. P.- C. The property be attached through S. H. O., Lala Musa.

(d) Muhammad Amin filed Criminal Revision No. 641 of 1969 to have set aside the order dated 26th May 1969 passed in vernacular. He assailed the order an the following grounds: -

(i) The learned Magistrate did not give any reasons for his satisfaction in pursuance of subsection (1) of section 145, Cr. P. C. nor did he state in pursuance of subsection (4) of section 145, Cr. P. C. that it was a case of emergency.

(ii) Muhammad Jamil having been dispossessed, according to the allegations made in the complaint, on the 4th June 1968, the learned Magistrate was not competent on 26th May 1969---more than two months after the dispossession to pass an order of attachment under subsection (4) of section 145, Cr. P. C.

3. It is needless to refer to the order passed in pursuance of subsection (4) of section 145, Cr. P. C., and reproduced in paragraph 2(c)(fi) ante, firstly because the revision petition does not seek to impugned that order and secondly because that order being one under subsection (4) of section 145, Cr. P. C. super structure, may stand or fall with the order made under sub section (I) of section 145, Cr. P. C.

4. An analysis of the impugned order reproduced in pare. 2 (c)(ii) above shows that it comprises two parts, namely--

(a) statement of facts, namely, reference to the application under section 145, Cr. P. C. and the statement made by Muhammad Jamil and

(b) the order passed by the Court, namely, that the house be attached and that the petitioner do produce his evidence on the 17th June 1969.

We have to see whether this order is in conformity with the requirements of subsections (1) and (4) of section 145, Cr. P. C. Subsection (l) and relevant portion of subsection (4) of section 145. Cr. P. C. are reproduced below for facility of reference -

"(1) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class is satisfied from a police report or other information that dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

(4) ..

provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute pending his decision under this section,"

Having received the relevant information, the Magistrate was required under subsection (1) of section 145, Cr, F. C., to make an order In writing stating the grounds of his being so satisfied and reqt6ritig the parties concerned to attend the Court to put in written statement, Having complied with the provisions of subsection (1), the Magistrate, if he considered it a case of emergency he could order attachment of the house In dispute.

It is true that in the impugned order the learned Magistrate referred to the apprehension entertained by Muhammad Jamil, It is also true that he did not In so many words state that he himself was also satisfied that there did exist a dispute likely to cause a breach of the peace concerning the said house. Further he did not state the grounds of his being so satisfied. Lastly he did not state that he considered it a case of emergency and therefore, directed attachment of the house. The result is that the impugned order is not in conformity with the requirements of law.

Learned counsel for the petitioner further urged that no attachment under subsection f4) of section 145, Cr. P. C., could have been ordered in this case for the reason that the order was passed on the 26th May 1969, whereas Muhammad Jamil according to his allegations, was dispossessed on the 4th Jun 1968, more than two months before the date of the order, One a Magistrate, who has jurisdiction within the meaning of subsection (1), has made an order in writing under subsection (1), he is competent "at any time" to attach the subject-matter of the dispute in pursuance of the second proviso to subsection (4). Since, in this case, no valid order under subsection (1) has been passed, the order under subsection (4),shall be equally without effect.

4-A. In view of what has b-en stated above, the impugned order is unsustainable in law. It is hereby set aside.

5. The case is hereby withdrawn from the file of Mr. Ghulam Murtaza Hirlas, Magistrate, and is made over to learned Additional District Magistrate, Gujrat, who may either keep it on his own file or make it over for disposal to any other Magistrate. Any such Magistrate, while dealing with the matter, shall strictly follow the provisions of section 145, Cr. P. C.

Revision accepted.

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