Philip v. Velayudhan — 1963 DIGILAW 335 (KER)

Judgment :- 1. The question for decision is whether in proceedings under S.147 of the Code of Criminal Procedure, the court has jurisdiction to attach the land in respect of which a right of user is alleged by one party and denied by the other. Govinda Menon, J. has held in Kunhammad Makkaru v. Abdul Rahiman (1961 KLT. 329) that it has no jurisdiction to pass such an order but, as the correctness of this decision was canvassed before Anna Chandy, J. who heard this revision petition, the case has been referred to a Division Bench. 2. A few facts necessary for the decision of the case may be stated: The respondents here who were the 'A' party in the court below, claimed the right to bury dead bodies in a part of the land which the petitioner here (B party in the court below) had purchased. According to them, the petitioner was doing certain acts in the land with a view to obstruct the user of the same as a burial ground & such obstruction was likely to cause a breach of the peace. The complaint was enquired into by the Circle Inspector of Police and, on receipt of his report, the Executive First Class Magistrate, Palghat, passed a preliminary order ex parte under S.144 (1) of the Code of Criminal Procedure on 13-12-1962, directing that the order would be in force for one month. This was extended for one month more by another order which was also passed ex parte. An order under S.144 could not be in force for more than two months, and on 6-2-1963 the respondents moved for converting the proceedings to one under S.147 of the Code of Criminal Procedure. This prayer was granted the same day. Thereafter, on 16-2-1963, the respondents applied for an order of attachment of the property. On 11-3-1963 the learned Magistrate passed an order placing the property under attachment. The case was adjourned to 18-3-1963 for filing documents and written statement. The criminal revision petition is directed against the order of attachment. 3. As stated earlier, this question is covered by the decision in Kunhammad Makkar v. Abdul Rahiman (1961 KLT. 329) according to which the court has no jurisdiction to pass an order of attachment in proceedings under S.147 of the Code of Criminal Procedure. The criminal revision petition is directed against the order of attachment. 3. As stated earlier, this question is covered by the decision in Kunhammad Makkar v. Abdul Rahiman (1961 KLT. 329) according to which the court has no jurisdiction to pass an order of attachment in proceedings under S.147 of the Code of Criminal Procedure. The Travancore-Cochin High Court has also taken the same view in E.M. Jacob v. K. Ravivarman (AIR. 1953 T.C. 202). The above view is supported by the decisions in Rahim Baksha v. Abdal Washed (I.L.R.1948-1 Cal. 374) and Chelliah Pillai v. Ramiah Thevar (AIR. 1942 Mad. 77). The question has been elaborately discussed in E.M. Jacob v. K. Ravivarman, and it is therefore unnecessary to refer to the earlier decisions on the point. It has been pointed out that, while the dispute under S.145 relates to possession of land, that under S.147 is in respect of a right of user of any land or water; and the land or water does not form subject of "dispute under S.147. It has also been pointed out that unlike S.145 even the final order does not contemplate placing of the land under attachment. 4. Counsel for the respondents pointed out that the amendment of S.147 by Act XXVI of 1955 was not noticed in the decision in Kunhammad Makkar v. Abdul Rahiman (1961 KLT. 329). According to him the effect of the amendment is to make the substantive provisions of S.145 also applicable to proceedings under S.147. We are unable to agree. S.147(1) as it originally stood, provided that the Magistrate shall inquire into the matter in the manner provided under S.145 and that the provisions of that section shall, as far as may be, be applicable to such inquiry. S.145(4) as it stood before the amendment, provided that the court could receive all such evidence as may be produced by the parties, consider the effect of such evidence and take such further evidence as the court thought fit. By the amendment made in 1955, the scope of the inquiry under S.145 has been curtailed considerably. S.145(4) as it stood before the amendment, provided that the court could receive all such evidence as may be produced by the parties, consider the effect of such evidence and take such further evidence as the court thought fit. By the amendment made in 1955, the scope of the inquiry under S.145 has been curtailed considerably. After the amendment, S.145(4) reads as follows: "(4) The Magistrate shall then, without reference to the merits or the claims of any such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein: Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date: 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". This contemplates only the examination of persons whose affidavit have been put in. It is also directed that the inquiry should be concluded as far as may be practicable within a period of two months from the date of the appearance of the parties. This contemplates only the examination of persons whose affidavit have been put in. It is also directed that the inquiry should be concluded as far as may be practicable within a period of two months from the date of the appearance of the parties. This necessitated the amendment of S.147 under which an inquiry of wider scope was called for; and S.147(1A), which is extracted below, was added: "(1A) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists and the provisions of S.145 shall, as far as maybe, be applicable in the case of such inquiry." The Magistrate has thus the same powers in the matter of taking evidence, as he had before the amendment. This appears to have been the object of amending S.147. No doubt, S.147 (1A) provides that the provisions of S.145 shall, as far as may be, be applicable in the case of such inquiry. In our opinion this is not intended to confer a power of attachment of the land in relation to which a right of user is claimed. 5. Reliance was placed by the respondents on a decision of the Calcutta High Court in Mukul Renjan v. Champa Bala (AIR. 1956 Cal. 231). In that case one party claimed as user of land belonging to the opposite party, as a park. With great respect, we are unable to follow this decision. The learned judge does not appear to have noticed the amendment of S.147 because it was observed: "But S.147 (1) provides that a Magistrate after the proceeding has been drawn up under S.147 shall enquire into the matter in the manner provided in S.145 and the provisions of that section shall, as far as may be, be applicable in the case of such enquiry. The procedure of enquiry is laid down in S.145 (4). The procedure of enquiry is laid down in S.145 (4). The proviso to that sub-section is as follows: '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'." The learned judge then held that, although the dispute was really over the question whether the second party had a right or not to use the land as a park, the subject of the dispute was the land itself and not the right of user of that land. As it was held that all the provisions of S.145 were applicable, the order of attachment was confirmed. We have already pointed out that only such of the provisions of S.145 as may be applicable can be applied to an inquiry under S.147. This section, in our opinion, does not contemplate an order of attachment even at the final stage. If it is felt that interim orders which are not warranted under S.147 are necessary for the preservation of peace, other appropriate provisions of the law should be resorted to. 6. Another argument was that, even though S.147 deals with disputes over the right of user of land or water, there may be cases in which such dispute is really a dispute relating to possession of land. Where the dispute is in respect of possession of land, the proper section applicable is S.145. 7. Finally it was argued that this court has wide powers under S.561A of the Criminal Procedure Code and that such powers could be used to place the land under attachment in appropriate cases. This section does not confer new powers. All that the section means is that those powers which the Court inherently possesses shall be preserved. The section cannot relate to powers which were not in existence before the section was enacted. The court will not be justified in using its inherent powers unless it is necessary for the purpose of carrying out the other provisions of law or for the purpose of doing justice. These are not to be invoked when another remedy is available. The High Court cannot pass an order which would conflict with the provisions of the Code. The court will not be justified in using its inherent powers unless it is necessary for the purpose of carrying out the other provisions of law or for the purpose of doing justice. These are not to be invoked when another remedy is available. The High Court cannot pass an order which would conflict with the provisions of the Code. An order of attachment is not contemplated nor provided for by S.147, and we do not consider it proper to pass such an order in exercise of the powers under S.561A. In the result, we allow the criminal revision petition and set aside the order of attachment. Allowed.