Ram Sri v. Dhanpat — 1980 DIGILAW 704 (ALL)

JUDGMENT P. N. Bakshi, J. 1. THIS application under section 482 Cr.P.C. arises out of proceedings under section 145 Cr.P.C. in which a preliminary order was passed on 31st May, 1976. Subsequently the case proceeded and parties were directed to file their written statements and produce evidence in support of their respective claims. Ultimately on 22-4-1977, the Magistrate being unable to decide as to which party was in possession of the property in dispute on the date of the preliminary order, directed that the property be attached till the parties get their rights adjudicated upon by a competent court. This order was obviously passed under Third part of section 146 (1) Cr.P.C. ft appears that subsequently a revision was filed against this order before the Sessions Judge, who on 23rd April, 1976 directed stay of the operation of the order of attachment. Before the order of the Sessions Judge, could be communicated to the court below, it is clear from the documents on the record that the possession of the disputed property was already handed over in the supurdagi of Sarva Sri Nand Kishore and Resham Singh. It appears that since the order of the Sessions Judge staying attachment became infructuous, with the result that it could not be carried out, the latter took this as an insult to the exercise of his authority, and he passed another order directing redelivery of possession of the property to the second party. There can not be the slightest doubt that this order passed by the Sessions Judge directing redelivery of the property was wholly an illagal order. The law is very clear that the stay order only takes effect from the time that it is actually communicated to the court below and if prior to its communication the order of the trial court is already executed, then there is no reason why the Judge should feel worried and attempt to exercise powers which he does not possess in passing an illegal order of redelivery of possession. However, it appears that the revision filed before the Sessions Judge was ultimately dismissed on 18th August, 77. The property was again got attached by the Magistrate on 31st January 78. Again a revision was filed against this order, which too was dismissed on 15th June 78. However, it appears that the revision filed before the Sessions Judge was ultimately dismissed on 18th August, 77. The property was again got attached by the Magistrate on 31st January 78. Again a revision was filed against this order, which too was dismissed on 15th June 78. It is not necessary for me to go on multiplying un-necessary facts, which have no bearing with the question which has arisen now at this stage. 2. IT appears that on 26th July, 1978 Dhanpat and others moved an application before the Magistrate that there was no apprehension of breach of peace between the parties and that they were in possession of the disputed property. IT is also mentioned that civil proceedings had been instituted and in that court Smt. Ram Sri had admitted (sic) affected on 311-1-1978 be withdrawn and the proceedings be dropped. The Magistrate again called for a report from the police and this application which was submitted on 27th July, 1978. The report was to the effect that there did not exist any apprehension of breach of peace. The Magistrate after hearing the parties passed an order on 17fh October, 78 by which he drew the attachment order passed by him earlier under section 146 (1) Cr. P. C. and directed that the aggrieved party should seek his remedy in a competent court of law. The question, which has been raised on these facts is whether after an order has been passed under section 146 (1) Cr. P. C. by the Magistrate attaching the property in dispute on the ground of inability to decide the question of possession interse the parties, concludes the matter, with the result that the Magistrate has no jurisdiction to withdraw the attachment subsequently or whether the Magistrate continues to have seizen over the case with the result that in spite of the final order passed by him, he can still withdraw the attachment. Counsel for the applicant has placed the proviso to Section 146 of the Cr. P. C. 1973 which runs as follows:- "Provided that such Magistrate may 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." 3. Counsel for the applicant has placed the proviso to Section 146 of the Cr. P. C. 1973 which runs as follows:- "Provided that such Magistrate may 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." 3. THE argument is that the expression 'any time' could be extended even to a period beyond the passing of a final order of attachment under section 146 (1) part III Cr. P. C. He, therefore, submits that the Magistrate was quite competent to pass an order withdrawing; the attachment on 17th October, 78. In support of this proposition, learned counsel has cited two single Judge decisions viz 1973 A. Cr R. 282 and 1975 Cr. L. J. 1561. I have carefully perused both these cases, but I am unable to obtain any useful guidance from them. 4. IN my opinion, the interpretation which is sought to be put upon the proviso is not possible to accept. As I have mentioned earlier, also three types of attachment are contemplated under section 146 Cr. P. C. One is temporary attachment, or what is termed as an emergency attachment, that enures only till such time as the Magistrate finally decides the question of the nature of possession of the parties and ultimately passes an order delivering the possession to one of them whom he holds to be in possession. The second type of attachment is that where the Magistrate decides that none of the parties are in possession and the third type of attachment is that where the Magistrate is unable to decide as to which party is in possession. In the first case, the jurisdiction of the Magistrate continues inspite of the emergency attachment. Therefore, so long as the proceedings under section 145 Cr. P. C. have not reached their final stage, if any question is raised by either of the parties to the proceedings, that there is no apprehension of breach of peace, it becomes the duty of the Magistrate under the proviso to consider that question and to decide it before proceeding to give a final decision. P. C. have not reached their final stage, if any question is raised by either of the parties to the proceedings, that there is no apprehension of breach of peace, it becomes the duty of the Magistrate under the proviso to consider that question and to decide it before proceeding to give a final decision. But when be passes the second or third type of orders, there can be no doubt that the intention of the legislature was that the jurisdiction of the Magistrate should seize at the stage where such an order is passed. In either of those two cases, the Magistrate keeps the property under attachment, so that the parties may approach the competent Civil Court for a final adjudication of their rights. He has no power left to revive those proceedings and to pass any order in connection therewith, whether it be for recommencing the proceedings, or for dropping the proceedings. He becomes functus officio after he passes an order of second or third type. The civil court where the proceedings are pending can be approached by the parties for getting suitable orders. The Magistrate can not proceed thereafter because he has already washed his hands off the case by his inability to decide the question of possession and the consequent order of attachment. In this very connection, I would also like to refer to the old CrPC particularly to the proviso to Section 145 (4) CrPO. That proviso was to the effect 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." 5. THIS clearly indicates that the jurisdiction for emergency attachment even under the old Code was provided to the Magistrate so long as the case remained pending before him and he did not decide it finally. Once the final decision was given, he ceased to have jurisdiction. 6. A reference to Section 145 (1) of the Old Code would again be relevant in this connection. That section, envisaged two contingencies where the Magistrate was of the opinion that none of the parties were in possession or was unable to decide the question of possession. Once the final decision was given, he ceased to have jurisdiction. 6. A reference to Section 145 (1) of the Old Code would again be relevant in this connection. That section, envisaged two contingencies where the Magistrate was of the opinion that none of the parties were in possession or was unable to decide the question of possession. In either even, he was given a power of attachment not emergency attachment but an attachment for the same purpose of drawing up a statement of the case for reference to the civil court, so that he could get a finding of the civil court and pass a final order in conformity with that finding under section 146 (1-B) CrP.C. That power of making reference to the civil court has now been taken away by the subsequent amendment in the year 1973. Therefore, this implies that the power which the Magistrate exercised under the old CrPC till the decision of the civil court was received, is no longer in existence now. Therefore, the question of existence or otherwise of an apprehension of breach of peace could not be reagitated by the parties before the Magistrate under the new Code after he has already attached the property under Part II and III of Section 146 CrPC and directed the parties to go to a civil court. The salient difference now is that whereas under the old Code, a reference was provided to the civil Court under the new Code there is no such reference. The Magistrate under section 146 Part II and III CrPC attached the property finally and leaves the parties to proceed on their own initiative to the civil court for redress of their grievances. This implies that the Magistrate will cease to exercise jurisdiction thereafter, and the parties cannot approach him subsequently to drop the proceedings on the ground that there is no apprehension of breach of peace. The civil court would be the proper forum which can be approached by the parties to give them adequate relief in accordance with law. For the reasons, given above, I am of the opinion that the proviso to Section 146 (1) CrPC applies only in those cases where proceedings under section 145 CrPC have not been finally decided. The civil court would be the proper forum which can be approached by the parties to give them adequate relief in accordance with law. For the reasons, given above, I am of the opinion that the proviso to Section 146 (1) CrPC applies only in those cases where proceedings under section 145 CrPC have not been finally decided. Where the final decision, given is not for attachment on the ground of no party possession or on the ground of inability to decide the possession, the proviso would not apply. So long as the proceedings continue under section 145 CrPC the Magistrate can take up this question again whether the apprehension of breach of peace continues or the proceedings be dropped. But after a final order has been passed under section 145 CrPC or Section 146 (1) CrPC not on the merits, but otherwise as indicated above, this proviso would not be applicable and the court of the Magistrate would be functus officio to reopen the matter and drop the proceedings. No party would have the right to take up this question again before the Magistrate for getting the final attachment withdrawn, and proceedings dropped. 7. FOR the reasons given above, I am of the opinion that this application under section 482 CrPC should be allowed. The impugned order passed by the Sub-Divisional Magistrate dated 17-9-1978 dropping the proceedings and directing the aggrieved party to seek their remedy in a competent court of law, being an order passed without jurisdiction, is [hereby quashed. The property shall continue to remain under attachment till such time as the rights of the parties are decided by the competent court of law. -- Application allowed.