Som Prakash Shandilya vs Mr. Siddhartha Singh, Advocate, for the applicant.

None for the applicant. Mr. Siddhartha Singh, Advocate, for the private respondent no. 2. 21st February, 2012 Hon(cid:146)ble Servesh Kumar Gupta, J. Since the controversy involved in both the aforetitled petitions is same, which is being contested by the same parties, hence both these petitions are being adjudicated by this common judgment and order.

2. It is pertinent to mention that even in the revised call none turned up on behalf of Rajesh Kumar Gautam, who is the applicant petitioner in C482 Petition No. 489/2004 and respondent no. 2 in C482 Petition No. 455/2004. So, hearing was given to learned Brief Holder for the State and learned Counsel for Som Prakash Shandilya, petitioner in C482 No. 455/2004 and respondent no. 2 in C482 Petition No. 489/2004. 2

3. It transpires that the controversy involved in these petitions pertains to one Sri Geeta Ashram Charitable Trust Swargashram, Rishikesh, District Dehradun (for brevity, hereinafter referred to as (cid:145)Ashram(cid:146)). Som Prakash Shandilya is the President-cum-Managing Trustee of the Ashram. The said Ashram is wealthy of huge property. Rajesh Kumar Gautam claims his ownership over the said property on the basis of a WILL allegedly executed by his uncle. So, the dispute cropped up between the parties. Both the parties entered into civil litigation against each other claiming their respective ownership and possession over the Ashram.

4. Proceedings under Section 146(1) CrPC were also initiated before the City Magistrate, Haridwar, who after taking stock of the situation and on hearing both the parties, passed a preliminary order on 3.3.2004, whereby the City Magistrate attached the property of the Ashram in order to maintain peace and tranquility in the area and also appointed a Receiver, namely, Virendra Tiwari, Assistant Government Advocate, for looking after and managing the affairs of the Ashram.

5. The aforesaid order of the City Magistrate was challenged by Rajesh Kumar Gautam by filing the Revision No. 62/2004, which was adjudicated by Mr. Kanwar Sen, the then Additional Sessions Judge/Ist F.T.C., Haridwar, who vide his judgment and order dated 7.8.2004 allowed the revision and set aside the order of City Magistrate, Haridwar.

6. Hence, a C482 Petition No. 455/2004 has been filed before this Court by Som Prakash Shandilya, wherein interim stay was granted on 15.10.2004. It has now been 3 apprised that as a result of the said stay order, Ashram, at present, is being looked after by its trustees under the total control and supervision of the Receiver appointed by the City Magistrate.

7. On the other hand, subsequent to filing of the aforementioned petition by Mr. Shandilya, Rajesh Kumar Gautam also filed a C482 Petition No. 489/2004 challenging the proceedings pending before the City Magistrate, Haridwar, wherein this Court, on 28.7.2005, granted interim relief and stayed further proceedings pending before the City Magistrate.

8. It can significantly be noted that before staying the further proceedings pending before the City Magistrate, a preliminary order under Section 146(1) CrPC had already been passed by the City Magistrate on 3.3.2004 i.e. more than a year and four months prior to staying the proceedings pending before the City Magistrate. So, this way the aforesaid preliminary order, so passed by the City Magistrate, Haridwar, is in operation, and in pursuance of that order, affairs of the Ashram are being run under the total control and supervision of the Receiver appointed by the City Magistrate.

9. Mr. Siddhartha Singh, learned Counsel for the petitioner Som Prakash Shandily, relied upon authorities of this Court. In the first authority, rendered in case of Jaiprakash v. Rajeshwar Prasad & Others, reported in 2003 U.D. 171, this Court has held as under: (cid:147)The reasons are that it is well settled that an order of attachment of the property under Section 146(1) of the Code made during the pendency of the proceedings under Section 145 4 is an order purely of intermediate and temporary nature as by the order of attachment neither the respective rights of the parties are adjudicated nor any finding about any legal right is given by such an order. The order does not finally dispose of the pending proceedings and as such the order of attachment is an interlocutory order within the meaning of Section 397(2) of the Code.(cid:148)

10. In the second authority, rendered in case of Manohar Lal Sharma v. State of Uttarakhand & Another, reported in 2010 (1) U.D. 674, this Court has observed as under: (cid:147)It is settled principle of law that when the suit in respect of a property is already pending before a civil court, the proceedings under Section 145 of Cr.P.C. are not desirable. However, it is pertinent to mention here that Section 146(1) of Cr.P.C. provides three different situations when the order of attachment could be passed under said Section, namely (i) when is a case of emergency, or (ii) when none of the parties are found in possession of the property in dispute, or (iii) when the Magistrate is unable to satisfy himself as to which of the parties are in possession over the property in dispute. As far as conditions abovementioned conditions No. (ii) and (iii) are concerned, certainly, when the dispute is pending before the competent civil court, the Magistrate, instead of proceeding further with the proceedings under Section 145 or 146 of Cr.P.C., should direct the parties to get their rights determined from the civil court, where the suit is 5 pending. However, in the case of emergency, Magistrate cannot be expected to wait for the decision of the civil court.(cid:148)

11. In the instant controversy, nothing has been manifested before this Court to the effect that any order concerning to the protection of the property, in question, was ever made by the civil court in any of the litigations launched inter se between the parties. Hence, it was the bounden duty of the Magistrate concerned to pass the order dated 3.3.2004, impugned in petition no. 489/2004, in order to protect the disputed property and to prevent any further chaotic situation.

12. In the panoptic view of the matter, as stated above, the judgment and order dated 7.8.2004, passed by the Additional Sessions Judge/Ist F.T.C., Haridwar, in Revision No. 62/2004, is wholly untenable in the eyes of law and the same ought not to have been passed. Hence, it is liable to be quashed.

13. Resultantly, for the reasons recorded above, C482 Petition No. 455/2004 is allowed, and the aforesaid judgment and order dated 7.8.2004, impugned in this petition, is hereby set aside. Consequently, the C482 Petition No. 489/2004, being devoid of any merit, is hereby dismissed, and the interim order dated 28.7.2005, passed by this Court in this petition, is vacated.

14. Registry is directed to inform the court concerned accordingly.

21.2.2012 Prabodh (Servesh Kumar Gupta, J.)