BAPPUTTY v. KAYYU — 1978 DIGILAW 222 (KER)

Judgment :- 1. preliminary order under S.145(1) of the Code of Criminal Procedure, 1973 was issued by the learned Sub Divisional Magistrate, Perintalmanna on 21-7-1976 requiring the parties thereto to attend his court on 30-7-1976 as contemplated by the provisions of the said code. Viewing the matter as one of emergency the learned Magistrate attached the property under dispute under S.146(1) of the same code and the Village Officer, Valam-bur was put in charge of the property attached. Thereafter the case was posted for evidence. At that stage a question of jurisdiction was raised before the learned Magistrate. Answering the same he held that he has no jurisdiction to determine the question of possession. He thereafter dropped further proceedings under S.145 of the Code. The learned Magistrate in taking the aforesaid view followed the decision of the Allahabad High Court in Chandi Prasad v. Om Prakash (1976 Crl. Q. 209) and that of the Patna High Court in Md. Muslehuddin v. Md. Salahuddin (1976 Crl. Q. 1150). This is the order under revision. 2. The learned single judge, who heard the case in the first instance, doubted the correctness of the decision of the lower court and raised the following point for consideration by a larger Bench: The only point that arises for decision in this revision is of some importance and relates to the interpretation of S.146(1) of the Code of Criminal Procedure, 1973. The point is whether a Magistrate who passed an order attaching the subject of dispute on the ground that he considered the case as one of emergency ceases to have jurisdiction to continue the proceedings under S.145 in accordance with the provisions therein to find out as to which of the parties was in actual possession of the subject of dispute at the time of passing of the preliminary order or within two months next before the date on which the report of a police officer or other information was received by the Magistrate." The learned single judge noticed that the Allhabad High Court in a subsequent decision took a different view. That decision is Ram Adhin v. Shyama Devi(1977 Crl. L. J. 453). The learned single judge also noticed that the Gauhati High Court in Kshetra Mohan v. Paran Chandra (1978 Crl. L. J. 936) has taken a view different from that in 1976 Crl. L. J. 209 and 1976 Crl. L. J, 1150. That decision is Ram Adhin v. Shyama Devi(1977 Crl. L. J. 453). The learned single judge also noticed that the Gauhati High Court in Kshetra Mohan v. Paran Chandra (1978 Crl. L. J. 936) has taken a view different from that in 1976 Crl. L. J. 209 and 1976 Crl. L. J, 1150. The learned judge referred to the decision of the Supreme Court in Chandu Naik v. Sitaram B. Naik (1978 (1) S.C.C.210)-(1978 S.C.C. (Cr.) 100). Despite the decision of the Supreme Court the learned single judge felt difficulty to decide the matter in view of the decision of this Court in Lilly Franklin v. Wilson (1977 KLT 871). Accordingly the matter was referred to a larger Bench and the case is before us. 3. The point that arises for consideration here has been elaborately and in detail discussed by another Division Bench of this Court in Crl. R. P. Nos. 107 and 129 of 1977. (1978 KLT. 741). The learned Chief justice speaking for the Court said: "On the scheme of the Sections alone, proceedings started under S.145 (1) must run their course till they terminate under S.145 (4), by decision as to possession; or under S.145 (5) by dropping the proceedings, or under S.145 (6) by the passing of an effective order. S.146 (1) provides for attachment of the subject-matter of the dispute as an interim measure Under clause (2) of S.146 the courses open to the Magistrate in such a case are indicated. They are, either to make arrangements for looking after the property or to appoint a Receiver thereof. If a Receiver is appointed, and if it subsequently happens that the Civil Court also appoints a Receiver in respect of the subject-matter of the dispute, the Magistrate is either to order the Receiver to hand over possession to the Civil Court Receiver and to make such other incidental or consequential orders. From the scheme of the Section itself it is clear that the proceedings do not automatically terminate after the effecting of an interim attachment under S.146 (1). From the scheme of the Section itself it is clear that the proceedings do not automatically terminate after the effecting of an interim attachment under S.146 (1). A limited course of enquiry is open, as indicated by S.146 (2), so that it would not be correct to take the view that there is an automatic cessation of further enquiry or a dropping of the proceedings on an interim attachment and appointment of a Receiver under S.146 (1)." Ultimately the learned Chief Justice said: "In the light of the exposition of law by the Supreme Court, it is difficult to take up the extreme position that there is an automatic termination of the proceedings on the effecting of an interim attachment or appointment of a Receiver under S.146 (1), or that the Magistrate becomes functus officio on passing such an order." The aforesaid Division Bench has taken note of the Supreme Court decision mentioned earlier. The said Division Bench confined the decision Lilly Franklin v. Wilson (1977 KLT. 871) as also another decision of this Court in Ravindran v. Rugmini Amma (1977 KLT. 738) to the facts of the respective cases, 4. In Lilly Franklin v. Wilson (1977 KLT. 871) a learned judge of this Court said that a composite order under S.145(1) of the Code requiring the parties thereto to attend the Court, and under S.146(1) attaching, on the ground of emergency, the subject of dispute is a final order since by the order of attachment proceedings before the Magistrate came to an end, and that therefore, S.397(2) of the Code would not be attracted, and that the said order is revisable under S.397(1) of the Code. In the other case, Ravindran v. Rugmini Amina (1977 KLT. 738) in proceedings under S.145 the Magistrate attached the subject of dispute on the ground of emergency and appointed a receiver thereof. He then recorded evidence and passed final order whereby he decided that one of the parties was in possession of the subject of dispute obviously, a finding entered under S.145(4) of the Code. He lifted the attachment, terminated the receivership and directed that possession of the subject of dispute be given to the successful party. He then recorded evidence and passed final order whereby he decided that one of the parties was in possession of the subject of dispute obviously, a finding entered under S.145(4) of the Code. He lifted the attachment, terminated the receivership and directed that possession of the subject of dispute be given to the successful party. It was held that once the subject of dispute is attached the Magistrate is incompetent to proceed with the enquiry and that therefore the finding entered by him that one of the parties was in possession as also the raising of the attachment and the termination of receivership were not warranted by the provisions of the Code. These propositions cannot be treated as good law in view of the subsequent pronouncement of the Supreme Court in Chandu Naik v. Sitaram B. Naik (1578 S CC. (Cr.) 100) =1978(1) S.C.C. 210 where that court, for the guidance of the Magistrate indicated briefly as to how he should proceed for disposing of a proceeding under S.145 and 146 of the Code in the following manner: "The Magistrate, in the first instance, will try to conclude the proceeding in accordance with the various provisions of S.145 of the Code. If he is able to declare the possession of either party on consideration of the evidence adduced or to be adduced before him he would do so. In that event the other party will be forbidden from creating any distorbance of the possession (including the deemed possession, in case the application of the proviso to sub-section (4) is found necessary) of the party declared in possession. The Magistrate, then, will have to withdraw the attachment in accordance with the proviso to sub-section (1) of S.146, because, a? per his order declaring a party in possession there would be no longer any likelihood of the breach of the peace with regard to the subject of dispute. The party not found in possession by the Magistrate will have to seek the redress of his grievance, if any, elsewhere. per his order declaring a party in possession there would be no longer any likelihood of the breach of the peace with regard to the subject of dispute. The party not found in possession by the Magistrate will have to seek the redress of his grievance, if any, elsewhere. If, however, the Magistrate decides that none of the parties was in possession of the disputed property on the date of the order made under sub-section (1) of S.145 or if he is unable to satisfy himself as to which of them was then in possession of the subject of dispute he need not lift the attachment until a competent Court had determined the rights of the parties as provided for in S.146 (1). In such a situation recourse if necessary, may be taken to sub-section (2) of S.146 of the Code either by the Magistrate or a Civil Court, as the case may be." In the case before the Supreme Court, the Magistrate passed a preliminary order under S.145 (1) of the Code on July 29, 1975 requiring the parties to appear before him and put in their written statements. On the same day he also attached the property in dispute under S.146 (I) of the Code. The appellants before the Supreme Court put in their written statements on August 2,1975. Thereafter the case was heard by the Magistrate from time to time. On January 21. 1977 the Magistrate passed on order that in view of S.8 of the Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975, which came into force with effect from November 11, 1975, he had no jurisdiction to proceed with the enquiry. The Bombay High Court on revision confirmed this order. On appeal the Supreme Court said that S.8 of the Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975 is not attracted to proceedings under S.145 of the Code. The Supreme Court therefore held that the proceeding under S.145 of the Code did not abate and observed: "If the proceeding had so abated the attachment order passed by the Magistrate on July 29, 1975 could not survive and the Magistrate could not allow it to continue as he has done in this case." Note, this was a case where attachment had been effected on the ground of emergency. 5. 5. In two out of the three instances where the Magistrate is unable to decide whether any of the parties was in possession of the subject of dispute and where he decides that none of the parties was in possession of it, as on the date of the preliminary order or within the two months mentioned in the proviso to S.145 (4) of the Code his jurisdiction to attach it arises only on completion of the enquiry contemplated by S.145 (4) and he finds that he is unable to pass an order under S.145 (6) of the Code, whereas in the third case where he considers the case to be one of emergency such jurisdiction arises (and can arise only) pending such enquiry but after he has passed the preliminary order under S.145 (1) requiring the parties to attend his court and to put in written statements. Often time the preliminary order would be followed and accompanied by an order of attachment passed on the ground of emergency which means, if the proceeding abates by reason of such attachment, that the preliminary order requiring the parties to attend his court and to put in written statements is passed only with a view to assume jurisdiction to attach the disputed property and not to afford an opportunity to the parties or any person interested to show as contemplated by S.145 (5) that no such dispute as is mentioned in the preliminary order exists or has existed and to seek cancellation of the said order for that reason, nor with a view to hold an enquiry as envisaged by S.145 (4) culminating in an order under S.145 (6) or in an order of attachment of the disputed property on the ground that none of the parties is in possession of it or on the ground of his inability to decide as to which of them is in possession, as the case may be. If the legislative intent was to confer jurisdiction on the Magistrate to attach the disputed property and keep it under attachment till a Court competent to adjudicate rights of parties with regard to the person entitled to the possession thereof decides such right without himself embarking upon any enquiry as to the factum of possession at the material time without reference to the right to possess thereof, it could (and would) have conferred on him such jurisdiction straight away without making the jurisdiction in that behalf dependant upon his asking the parties to attend his court and calling upon them to submit their written statements a procedure non-compliance with which would be of no consequence if the Magistrate ceases to have jurisdiction because the parties would not be heard nor would their respective claims as regards the factum of actual possession be enquired into by him. No court would and should issue orders compliance whereof is neither possible nor expected, and non-compliance of which is of no consequence; and, the legislature cannot be attributed with the intent of providing for the issue of such orders. 6. The object of the proceedings under S.145 and 146 of the Code is to enable the Magistrate to discharge his function of preventing breach of peace within his jurisdiction by maintaining the status quo as regards and in relation to possession of immovable property. Whenever any breach of the peace is apprehended on account of dispute as to, or, scramble for, possession of any immovable property, it should be the Magistrate's aim and attempt to maintain the possession of it as obtained (actually or fictionally under the Proviso to S.145 (4) ) on the date of his taking cognizance of the likelihood of breach of the peace which is when he passes the preliminary order under S.145 (1) of the Code. Power to attach the disputed property on the ground of emergency is given to him to enable him to maintain the peace pending an enquiry as to whether any and which of the parties claiming actual possession as on the aforesaid date was in possession then, and the same need not continue once he decides that one or the other of the parties was then in possession under S.145 (6). Where no such decision is possible or where he decides that none of the parties was in possession, the attachment effected as an interim measure pending enquiry on the ground of emergency, would proprio vigore and without any re-attachment continue till a competent court determines as ; to who is entitled to possession thereof. Where no attachment has been effected as an interim measure, if on the conclusion of the enquiry under S.145(4) the Magistrate finds himself unable to decide as to which of the parties was on the material date in possession of the disputed property or finds that none of them was then possession of it, then also, he has power to attach the disputed property. This is the purport and effect of S.146(1) of the Code. S.146(2) provides as to how the attached property is to be looked after by making arrangements in that behalf and what is to be done when a Civil Court has appointed or subsequently appoints a receiver for that property. The proviso to S.146(1) enables the Magistrate to withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute, and this power can be exercised by him so long as there is no receiver appointed to the disputed property by a Civil Court. This proviso clearly indicates that the scheme of Ss.145 and 146 is as stated above. The point referred to has to be and is, answered in the negative, that is by holding that the learned Sub Divisional Magistrate does not cease to have jurisdiction to proceed with the case and that he can and should determine the question of possession as envisaged by S.145 of the Code and in accordance with the provisions contained therein. The learned Sub Divisional Magistrate went wrong in dropping the proceedings. We set aside the order under revision and send back the case directing the learned Sub Divisional Magistrate to proceed with the same in accordance with law and in the light of what is stated above. This revision is allowed to the above extent.