Judgment:
ORDER
Arun Madan, J.
1. Heard learned counsel for the parties.
It is contended by the learned counsel for the petitioner that the grievance of the petitioner is that it was enjoined upon the learned Sub-Divisional Magistrate to initiate fresh proceedings under Section 145 Cr. P. C. against the petitioner in view of the fact that earlier in the year 1990 also the property which is subject matter of dispute was subject to the proceedings under Section 145 Cr. P.C. in which earlier an attachment order has been passed but was subsequently vacated by the Court on the ground that there was no breach of peace. In revision which was preferred against the order of the learned S.D.M. dated 18-9-1990, the said revision was dismissed by the revisional Court on the ground that since civil suits concerning the subject matter of the property were already pending before the competent Court for adjudication, there was no possibility of breach of peace and consequently on the basis of prima facie view of the case the revision petition was rejected by the revisional Court.
2. It is further contended by the learned counsel for the petitioner that subsequent to the earlier order fresh proceedings have been drawn up under Section 145 read with Section 146 Cr. P.C. and the order of attachment has been passed by the learned S.D.M. and a receiver has also been appointed by the Civil Court and at the moment the receiver has taken charge of the property pending the decision by the Civil Court. It is contended by the learned counsel for the petitioner that it was not proper for the learned S.D.M. to have drawn fresh proceedings under Section 145 read with Section 146 Cr. P. C. particularly when on previous occassion the same property was subject matter of dispute in which order was passed under Section 145 Cr. P. C. and*i which was vacated in revision by the revisional Court since there was no apprehension of breach of peace.
3. I have perused the impugned order, dated 20th September, 1994 passed by learned Addl. Session Judge which is impugned order in this petition. Perusal of the said order explicitly reveals that learned S.D.M. had passed the impugned order on the basis of his subjective satisfaction after drawing prima-facie view of breach of peace in the matter concerning the subject-matter of the property in dispute. It was keeping in view this aspect of the case that the learned S.D.M. had passed the order of attachment under Section 145 Cr. P.C. and in my considered opinion learned S.D.M. was within his full competence to pass the impugned order because in view of the changed circumstances, since on the basis of the report of the investigating agency and the law enforcing authority, i.e., police, it was brought to the notice of the Court that there is every likelihood of the breach of peace and. in order to avoid a serious mishap it is necessary to pass the said order. Keeping in view this apect of the matter the revision which was preferred against the impugned order, was dismissed by the revisional Court on 20th September, 1994.
4. It is contended by the learned counsel for the petitioner that particularly when on the earlier occasion the proceedings under Section 145 Cr. P. C. were dropped against the petitioner it was not open to the competent Court to again go into the said question in 1994 notwithstanding the civil proceedings which are still pending between the parties and the respective right, title and interest is yet to be decided by the Civil Court. I am of the considered opinion that the principle of res-judicata has no application to the criminal proceedings particularly in view of the changed circumstances as existed earlier which justified the withdrawal of the previous order under Section 145 Cr. P.C. and subsequent passing of the fresh order at later stage.
5. In support of his contention advanced by the learned counsel for the petitioner at the bar, has placed reliance upon the judgment of the Apex Court in the matter of Shri Ganesh Narayan Hedge v. S. Bangarappa : 1995CriLJ2935 wherein similar question had arise for consideration of the Apex Court. It was held by the Apex Court that the High Court should not act as a second Revisional Court under the garb of exercising inherent powers under Section 482 Cr. P. C. The Apex Court further held that Section 482 Cr. P.C. empowers the High Court to exercise its inherent powers to prevent the abuse of process of the Court. It was further held that complaint has to be read as a whole. If it appears on a consideration of the allegation in the light of the statement on oath of the complaint that ingredients of offence/offences are disclosed, and there is no material to show that the complaint is malafide, frivolus or vexatious, in that event there would be no justification for interference by the High Court. I am of the opinion that the above judgment of the Apex Court does not render any assistance to the petitioner and helps in advancing the case of the prosecution rather than the petitioner. I am further of the opinion that the present revision petition has been-filed under Section 482 Cr. P.C. with a view to circumvent the provisions of Section 397 Cr. P. C. and exercise of the inherent powers by this Court under Section 482 Cr. P. C. would amount to abuse of the process of the Court and at this stage there will be absolutely no justification for quashing the proceedings pending under Section 145 Cr. P.C. before learned S.D.M.
6. Reliance has been placed by Shri Ayasthi, learned counsel for the State on the judgment of the Apex Court reported in Dharampal v. Smt. Ramshri : 1993CriLJ1049 wherein an identical question had arisen for consideration of the Apex Court. It was held by the Apex Court that the question which falls for consideration is whether the High Court could have utilised the powers under Section 482 Cr. P.C. and entertain a second revision petition at the instance of the first respondents. While answering the question in negative it was further held by the Apex Court as under:
'It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside.'
Keeping in view the facts and circumstances of this case and while applying the ratio of the Apex Court as laid down in the aforesaid decision, to this case, I am of the opinion that by having resort to the provisions of Sections 145 & 146 Cr. P. C, no illegality has been committed by the learned S.D.M., since Section 146 Cr. P.C. fully empowers a Magistrate to direct withdrawal of an attachment order at any time if he is satisfied that there is no long any likelihood of any breach of peace with regard to the subject of the dispute and it is open to the learned Magistrate to decide the said question at any stage of the proceedings or in his discretion at the final stage.
7. After hearing learned counsel for the parties and on examining their rival claims and contentions as well as the documents placed on the record and also on perusal of the law laid down by the Apex Court, I am of the opinion that no case is made out for interference by this Court under Section 482 Cr. P. C. I am further of the opinion that once an order has been passed by the learned S.D.M. under Section 145 Cr. P.C. directing attachment of a property which was subsequently withdrawn under Section 146 of the Code, there is absolutely no bar for the learned Sub-Divisional Magistrate to pass a fresh order of attachment if it is so justified in order to prevent the breach of peace at a later stage.
8. The petition has no merit and consequently the same is dismissed.