Moola S/O Juntha and ors. Vs. State of Rajasthan - Court Judgment

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criminal procedure code - section 145 and 146--withdrawal of attachment of property--suit property attached under section 145--dispute does not exsist now--report of tehsildar and patwari called for and considered--both parties also heard--held, sdm committed no illegality.;in the present case learned sdm called for the report of tehsildar etc. and after hearing both the parties, came to a particular conclusion and though that it was unnecessary to keep the property attached any more. he was within his powers to do so. i am therefore, of the opinion that the learned sdm has committed no illegality and no interference in the impugned order is called for.;(b) criminal procedure code - section 145--proceedings pending since 1979--held, it is too long period--proceedings be finished within 3 months.;these proceedings under section 145 cr. p.c. are pending since 1979, which is rather too long a period for proceedings to be decided under section 145 cr. p.c. earlier also this court had directed the learned sdm to finish these proceedings within a period of 4 months. however, this has not been done. learned sdm is nereby directed to complete the proceedings under section 145 cr.p.c. within a period of 3 months from the date of receipt of this order.;revision dismissed - - it is within the powers of sdm to withdraw the attachment at any time, if he is satisfied that there is no longer any likelihood of breach of peace with regard to the subject of dispute'.it is also pointed out that this court in its above order had in fact directed the sdm to dispose of the proceedings as soon as possible, but not later than four months in any case. if he is satisfied that there is no longer any likelihood of breach of peace with regard to the subject of dispute. earlier also this court bad directed the learned sdm to finish these proceedings within a period of 4 months.inder sen israni, j.1. this is a criminal revision petition filed under section 397/401 cr.p.c. against the order dated october 9, 1986 passed by the learned sdm, sikar, in cr. case no. 8/86.2. the proceedings under section 145 cr.p.c. were initiated as early as 1979 and it is unfortunate that since then the proceedings have not yet come to an end and in between the parties have been fighting litigation at various stages and have approached this court also. both the parties are fighting for possession of the disputed agricultural land and have put up their claims in the proceedings pending under section 145 cr. p.c. in the court of learned sub-divisional magistrate, sikar.3. the last order passed by this court was on 11-8-1986 in s.b, criminal petition no. 406/86, by which this court directed that the properly in dispute should have been attached in accordance with the order of this court dated january 6, 1986 passed in s.b. cr. re v. pet. no. 164/85 as there was imminent danger of breach of peace. however, the learned sdm vacated the attachment order and this court vide its order dated 18-8 86 set aside the order of sdm, and directed him to report compliance which was done and possession was taken by the receiver.3. the grievance of learned counsel mr. n.l. tibrewal appearing on behalf of the petitioners is that the sdm, inspite of the order of this court dated 18-8-1986 by which the learned sdm was directed not to release the property from attachment and appoint reciver, again the sdm has released the property from the attachment and handed over possession to the non-petitioners which was against the spirit of the order of this court dated 18-8-1986. learned counsel has also contended that even though both the parties were heard before passing the impugned order it was necessary to have recorded the evidence before reaching any conclusion on this point.4. learned counsel mr. n.a. naqvi appearing for the respondents has on the other hand urged that the learned sdm has committed no illegality in passing the impugned order, which is legal & valid in all respects. his contention is that in fact the impugned order has been passed in compliance with the order of this court dated 18-8-1986. he points out that this court in the above order had made clear that 'under the provisions to sub-section (i) of section 146 cr. p.c. it is within the powers of sdm to withdraw the attachment at any time, if he is satisfied that there is no longer any likelihood of breach of peace with regard to the subject of dispute'. it is also pointed out that this court in its above order had in fact directed the sdm to dispose of the proceedings as soon as possible, but not later than four months in any case. learned counsel has pointed out that before passing the impugned order the sdm vide his order dated 12-9-1986 called for report of the tehsildar and this report was produced by the tehsildar on 15-9-1986 who went along with the patwari. according to this report, the crop was standing & the non-petitioners, have been reported to be in possession. as per the report dated 7-10-1986, the standing crop on the disputed land was auctioned by tehsildar for rs. 7100/- to gyarsi one of the non-petitioners. this report was also given to the patwari. the objections raised for withdrawal of the attachment by the petitioners were also heard and decided by the sdm vide his order dated 9-10-1986 and the attachment was withdrawn and possession was ordered to be officially given as per the rules to the persons from whom the possession was taken. thereafter on 18-10-1986 the possession along with standing crop was handed over to the non-petitioner. learned counsel for the non petitioners has, therefore, pointed out that this court vide its order dated 18-8-1986 had itself observed that the sdm was empowered to withdraw the attachment at anytime under proviso to sub-section (i) of section 146 cr.p.c. if he is satisfied that there is no longer any likelihood of breach of peace with regard to the subject of dispute. he also contends that under the relevant provisions, it was not laid down that the evidence should necessarily be recorded before an order with drawing the attachment is passed. in the case of abdul aziz v. abdul hakim and ors. 1981 cr. l.r. (raj.) page 162, it was observed that once an attachment is made it can be withdrawn either on completion of proceedings under section 145 cr. p.c. or under section 146(1) cr. p.c. on the ground that there is no longer likelihood of breach of peace regarding the property in dispute.5. in the present case learned sdm called for the report of tehsildar etc. and after hearing both the parties, came to a particular conclusion and thought that it was unnecessary to keep the property attached any more. he was within his powers to do so. i am, therefore of the opinion that the learned sdm has committed no illegality and no interference in the impugned order is called for.6. these proceedings under section 145 cr. p.c. are pending since 1979, which is rather too longer period for proceedings to be decided under section 145 cr. p.c. earlier also this court bad directed the learned sdm to finish these proceedings within a period of 4 months. however, this has not been done. learned sdm is hereby directed to complete the proceeding under section 145 cr. p.c. within a period of 3 months from the date of receipt of this order, even though it may be necessary to proceed with the case in day to day manner. he is also directed to report compliance to this court on expiry of the period of 3 months.7. in the result, the revision petition is dismissed. a copy of this order be sent to the learned sdm immediately.