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1979 DIGILAW 5 (MP)

Aram Singh v. Hansia Bai

1979-01-02

N.C.DWIVEDI

body1979
ORDER N.C. Dwivedi, J. 1. This is an application under section 482 of the Code of Criminal Procedure by Aram Singh (herein after described as party No.1') against the decision of the Sessions Judge, Bhopal, dated 12-9-1978, in Criminal Revision No. 36 of 1978. 2. Relevant facts of the case are these: On 4-10-1976, party No.1 filed an application under section 145 of the Code of Criminal Procedure, 1973 (herein after referred to as 'the Code') before the Sub-Divisional Magistrate, Budhi, on the ground that he was the owner of the lands Kh No. 5/95, 100/2/1 and 100/2/2 of village Panari having purchased the same from Raghvendra Prasad by a registered sale deed dated 9-6-1976. On 29-9-1975, Smt. Hansia Bai and others (hereinafter referred to as 'party No.2) obstructed him from ploughing the lands resulting in a breach at peace. 3. Party No.1 lodged a report whereupon the police instituted proceedings under section 145 of the Code in the Court of the Sub-Divisional Magistrate, Budhi registered as Misc. Cri. Case No. 43 of 1976 The Sub-Divisional Magistrate on being satisfied that there was likelihood of the dispute causing a breach of the peace passed a preliminary order, dated 5-10-1976. On the same day, the Sub-Divisional Magistrate attached the disputed lands and kept them under the receivership of Mohanlal, 4. Thereafter, the Sub-Divisional Magistrate after perusal of the affidavits and other documentary evidence adduced by both the parties, held by order dated 18-1-1977 that it was not possible to take any decision and, therefore, the proceedings were dropped and the receivership was put to an end (Annexure 'A'). 5. Party No.1 filed Criminal Revision No.12 of 1977 before the Second Addl. Sessions Judge, Bhopal, who set aside the Sub-Divisional Magistrate's order and remanded the case to him to decide in the light of the observations made in the order (Annexure 'B') 6. After the remand, the Sub-Divisional Magistrate obtained fresh evidence in respect of possession over the disputed lands and on consideration of the oral and documentary evidence passed the order dated 25-6-1978 holding Party No.1 in possession of the disputed lands (Annexure C) In consequence of this order, the Sub-Divisional Magistrate directed the receiver to hand over the possession of the disputed lands to party No.1. On 28-6-1978, the receiver actually handed over the possession of the disputed lands to party No.1 (Annexure D). 7. On 28-6-1978, the receiver actually handed over the possession of the disputed lands to party No.1 (Annexure D). 7. Being aggrieved with this, the Party No.2 filed Criminal Revision No. 36 of 1978 before the Sessions Judge, Sehore, who directed the Sub-Divisional Magistrate not to proceed further with the case except for the purpose of finding out whether there is no longer any likelihood or a breach of the peace with regard to the lands under controversy and in case of his satisfaction, he should withdraw attachment under the proviso to sub-section (1)\ of section 146 of the Code leaving the parties to have their rights decided by a Civil Court (Annexure E). It is this order which is under challenge before me. 8. Party No.1 asserted that they were in actual possession of the disputed lands and supported the order of the Sub• Divisional Magistrate. 9. I have heard Shri S.C. Jain counsel for Party No.1 and Shri R.D. Hundikar, counsel for Party No.2. I am of the view that the order of the Sessions Judge, Sehore, in Criminal Revision No. 36 of 1978 deserves to be set aside and the case remanded to that Court for a decision of the revision on merits. 10. The Session Judge adopted entirely an illegal approach to the whole question. The reasons given by him in support of his order are detailed in paragraphs 8 to11. His directions are equally untenable. 11. The moment the Sub-Divisional Magistrate feels that there existed a likelihood of a breach of the peace, he should draw a preliminary order and direct the parties to put forth their respective claims before him. The Sub-Divisional Magistrate, after considering the entire material placed before him, declared party No.1 to be in possession and further directed the receiver to put the party No 1 in possession (Annexure C). In pursuance of this order, party No.1 was actually placed in possession of the disputed lands (Annexure D). The only controversy before the Sessions Judge was whether the Sub-Divisional Magistrate's order regarding the party No.1 being in possession was right or wrong. Once proceedings under section 145 of the Code are started, they have to be taken to the end and that was done by the Sub-Divisional Magistrate. The Sessions Judge was, therefore, clearly in the wrong in remanding the case on the observations made by him in the order. 12. Once proceedings under section 145 of the Code are started, they have to be taken to the end and that was done by the Sub-Divisional Magistrate. The Sessions Judge was, therefore, clearly in the wrong in remanding the case on the observations made by him in the order. 12. The following cases shall solve the controversy. In Cajitan A.D. Souza and another v. The State of Maharashtra and others. 1977 CrLJ 2032, it is held as under ;- "...... The provisions of section 146 are ancillary to those of section 145. The rule of harmonious construction must prevail over the rule of construing a provision literally where the result of a literal construction would have the effect of rendering some other provisions otiose or nugatory......" "On his passing such final orders, the emergency attachment would naturally come to an end. In case, however, the Magistrate cannot come to a definite conclusion regarding the particular party being in possession of the property, the emergency attachment would continue until adjudication by the competent Court, i.e., the Civil Court determining the rights of the parties to the dispute relating to the subject matter of the dispute. In view of the proviso to section 146(1) it would, however, be open to the Magistrate to withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of the breach of the peace with regard to the subject of dispute." 13. In Chandu Naik and others v. Sitaram B. Naik and another AIR 1978, it has been observed as under :- "We therefore, hold that the proceeding in question in this case did not abate and it has to be disposed of by the Magistrate in accordance with the provisions of law contained in Ss.145 and 146 of the Code For the guidance of the Magistrate, we think it expedient in the interest of justice to indicate briefly as to how the Magistrate is to proceed for disposing of the proceeding. 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. 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 disturbance 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, as 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 section 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 section 146 of the Code either by the Magistrate or a Civil Court, as the case may be." 14. In view of the law, as stated above, the course adopted by the Sessions Judge is clearly erroneous and deserves to be set aside. 15. For the reasons given above, the order of the Sessions Judge, dated 12-9-1978, in Criminal Revision No. 36 of 1978 is set aside and the case is remanded to that Court to decide the revision of party No.2 on merits.