Sita Ram Singh v. State of Bihar — 1989 DIGILAW 380 (PAT)

JUDGMENT S. B. Sinha, J.- This application is directed against an order dated 21.4.1989 passed by the Sub-Divisional Magistrate, Sadar, Ranchi in Case No, M. 725/89, whereby and whereunder the said learned court converted the proceeding under Section 144 of the Code of Criminal Procedure into a proceeding under Section 145 of the Code of Criminal Procedure and attached the said property in dispute purported to be in exercise of power conferred upon it under Section 146 (1) of the Code of Criminal Procedure and appointed the Assistant Labour Commissioner, Ranchi as a receiver. 2. The facts of the case lie in a very narrow compass. 3. The petitioner and the opposite parties claim themselves respectively to be validly elected office bearer of a union known as Engineering Mazdoor Sabha. 4. According to the petitioner, he was validly elected as president of the aforementioned union, which fact is denied and disputed by the opposite parties. 5. In relation to the aforementioned dispute, a proceeding under Section 144 of the Code of Criminal Procedure was initiated. On 23.1.1989, the said proceeding was dropped because of efflux of time and another proceeding under Section 144 of the Code of Criminal Procedure was initiated on 7.4.1989. 6. By reason of the impugned order, the later proceeding under Section 144 of the Code of Criminal Procedure has been converted into a proceeding under Section 145 (2) of the Code of Criminal Procedure. 7. Mr. A.K. Sinha, learned counsel appearing on behalf of the petitioner raised two fold contentions in support of this application. He firstly submitted that the learned Sub-Divisional Magistrate did not record any finding with regard to the apprehension of breach of peace till the date of passing of the order in relation to any immovable property and as such, the said order is without jurisdiction. 8. The learned counsel further submitted that in any event, the purpose for initiation of the proceeding under Section (4) of the Code of Criminal Procedure having been stated by the learned Sub-Divisional Magistrate to resolve the dispute as to who is the validly elected president of the Union, the same being without jurisdiction, the impugned order cannot be sustained. 9. The learned counsel further submitted that in any event, the purpose for initiation of the proceeding under Section (4) of the Code of Criminal Procedure having been stated by the learned Sub-Divisional Magistrate to resolve the dispute as to who is the validly elected president of the Union, the same being without jurisdiction, the impugned order cannot be sustained. 9. Secondly and/or alternatively the learned counsel submitted that in any event the learned Sub-Divisional Magistrate had no jurisdiction to attach the property in question simultaneously with passing of the order under Section 145 of the Code of Criminal Procedure and appoint a receiver in relation thereto. 10. Mr. Sinha, in this connection has relied upon the decision in Dirgopal Singh & ors v. Rambrich Singh, reported in 1951 Patna 412, in Khedu Mahto & ors v. Smt. Prem Sundri, reported in 1976 PLJR 187 , in Mahendra Tiwari v. Lal Pari Devi, reported in 1981 Cr. L.J. page 17 and in Chet Lal Mahton & ors v. Rewa Lal Mahton & ors., reported in 1983 PLJR 257. 11. Mr. N.K. Prasad, learned counsel appearing on behalf of the opposite parties, on the other hand, drew my attention to the impugned order and submitted that the learned Sub-Divisional Magistrate had arrived at the satisfaction required for the purpose of initiation of a proceeding under Section 145 (1) of the Code of Criminal Procedure on the basis of the materials on record and as such, this Court in exercise of its jurisdiction under Section 4152 of the Code of Criminal Procedure would not substitute its opinion to that of the learned Sub-Divisional Magistrate. The learned counsel, in this connection, has relied upon a decision of the Supreme Court in R.H. Bhutani v. Miss Mani J. Desai & ors, reported in 1968 S.C. 1444. 12. The learned counsel, further submitted that attachment of the property in question in terms of Section 146 of the Code of Criminal Procedure simultaneously with initiation of a proceeding under Section 145 of the Code of Criminal Procedure is not illegal. The learned counsel, in this connection, has relied upon a Full Bench decision of this Court in Gaya Singh & ors v. Doman Singh, reported in 1979 Patna 246 and in Baijnath Choubey & ors v. Dr. Ram Ekbal Choubey & ors, reported in 1981 PLJR 317. 13. Mr. The learned counsel, in this connection, has relied upon a Full Bench decision of this Court in Gaya Singh & ors v. Doman Singh, reported in 1979 Patna 246 and in Baijnath Choubey & ors v. Dr. Ram Ekbal Choubey & ors, reported in 1981 PLJR 317. 13. Mr. Prasad further submitted that even if, in the impugned order, the learned Sub-Divisional Magistrate has not used the word 'emergency' even then a case of the emergency can be found out on the materials on record and this Court shall not interfere with such an order whereby the properties in dispute have been attached and/or a receiver has been appointed in relation thereto. In this connection, the learned counsel has relied upon a Division Bench decision of this Court in Mahendra Tewari v. Mosst. Lal Pari Devi, reported in 1981 BBCJ 570 . 14. There cannot be any doubt that the power, authority and jurisdiction of an Executive Magistrate while initiating a proceeding under Section 145 (1) of the Code of Criminal Procedure or for that matter while disposing of such a proceeding is limited; his jurisdiction is merely confined to the question as to which party had been in possession of the properties in question on the date of initiation of a proceeding or two months prior thereto as contemplated under section 145 (6) of the Code of Criminal Procedure. 15. It is also true, as contended by Mr. Sinha that the then executive Magistrate in exercise of his power conferred upon him under Section 145 (1) of the Code of Criminal Procedure, cannot decide a disputed question as to whether one person or the other has been validly elected as the president of a trade union or not and the same obviously falls within the jurisdiction of the Registrar in terms of the provisions of the Trade Union Act, 1926. 16. However, in this case, the dispute is in relation to the possession of tile Union Office. The learned Sub-Divisional Magistrate in the impugned order clearly came to the conclusion that there exists an apprehension of breach pf peace in relation to the possession of the said Union Office. Such a finding had been arrived at on the basis of the materials on record which were furnished by the parties in the proceeding under Section 144 of the Code of Criminal Procedure. 17. Such a finding had been arrived at on the basis of the materials on record which were furnished by the parties in the proceeding under Section 144 of the Code of Criminal Procedure. 17. In view of the decision of the Supreme Court in R. H. Bhutani's case (supra), the satisfaction arrived at by the Magistrate is final and binding upon this Court. 18. In this view of the matter, in my opinion, there is no illegality in the impugned order, in so far as the learned court below has purported to initiate a proceeding under Section 145 of the Code of Criminal Procedure. 19. However, from a perusal of the impugned order, it is evident that the learned court below has found that the materials on record merely disclosed that there is an apprehension of breach of peace. He has neither stated nor disclosed any materials to show that there has been any emergency, so as to enable him to exercise jurisdiction under Section 146 (1) of the Code of Criminal Procedure. 20. There is no doubt that in a given case, an order of attachment can be passed if an emergency exists on the date of initiation of a proceeding. In a case of this nature where a proceeding under Section 144 of the Code of Criminal Procedure is being converted into a proceeding under Section 145 of the Code of Criminal Procedure, a simultaneous attachment of the property may be permissible in law. However, such is not the case here. 21. In Chet Lal Mahton Vs. Rewa Lal Mahton, reported in 1983 PLJR 257, the learned single Judge of this Court took into consideration the earlier Division Bench decision of this Court upon which strong reliance has been placed by Mr. N. K. Prasad. In Mahendra Tewari v. Mosst. Lal Pari Devi, reported in 1981 BBCJ 570 , wherein it has been held that there has been no conflict in the decisions of the Supreme Court in Chandu Naik & ors. v. Sitaram B. Naik & another, reported in 1978 S. C. 333 and in Mathuuralal v. Bhanwarlal &. N. K. Prasad. In Mahendra Tewari v. Mosst. Lal Pari Devi, reported in 1981 BBCJ 570 , wherein it has been held that there has been no conflict in the decisions of the Supreme Court in Chandu Naik & ors. v. Sitaram B. Naik & another, reported in 1978 S. C. 333 and in Mathuuralal v. Bhanwarlal &. another, reported in 1980 S.C. 242 and the learned Judge came to the conclusion that even if the word 'emergency' is not stated specifically in the order of attachment, but if the order disclosed that there exists materials to prove that there existed an emergency on the date of passing of the said order, the same is valid in law. 22. In this view of the matter, in my opinion, it is not necessary to deal with m details the decisions cited by the learned counsel for the parties on this point. 23. Mr. Prasad, has further drawn my attention to the fact that the petitioner had allegedly or forcibly entered into the office of the union on 1-4-1989 during the pendency of the proceeding under Section 144 of the Code of Criminal Procedure and despite the fact that the said office room was locked. 24. However, from a perusal of the said order itself, it would appear that the learned court below referred to the said fact for the purpose of coming to the conclusion that for that reason it becomes difficult for him to decide the possession of the parties in the proceeding under Section 144 of the Code of Criminal Procedure. He, therefore, on the basis of the aforementioned finding converted the proceeding under Section 144 of the Code of Criminal Procedure to one under Section 145 thereof. 25. Further, as submitted by Mr. Prasad that, in relation to the alleged incident dated 1-4-1989, a criminal case has already been instituted, but the impugned order was passed on 19-4-1989, 26. There is nothing on the record to show nor any other materials brought to my notice that any emergency existed on the date of passing of the said order. 27. Further, the learned Court below himself while purporting to pass the order of attachment, did not record any finding whatsoever that there existed an emergency or for that matter the situation has come to such a pass that it is necessary to appoint a receiver. 18. 27. Further, the learned Court below himself while purporting to pass the order of attachment, did not record any finding whatsoever that there existed an emergency or for that matter the situation has come to such a pass that it is necessary to appoint a receiver. 18. Further in a case of this nature, the appointment of a receiver was irrelevant inasmuch as the Assistant Labour Commissioner has got nothing to do with the management of the union nor can he function in any capacity in relation to the said union under the Trade Union Act, 1926. 29. In this view of the matter, in my opinion, the second part of the order, whereby and whereunder the learned Sub-Divisional Magistrate has attached the properties in question and appointed the Assistant Labour Commissioner, Ranchi as a receiver, cannot be sustained. 30. In the result, the application is allowed in part. In view of the nature of dispute between the parties and further in view of the fact that the dispute related to the office of the union, in my opinion, it is necessary in the interest of justice to dispose of the said proceeding at an early date. In this situation, the learned Magistrate, who is in seisin of the case, is hereby directed to dispose of the proceeding under Section 145 of the Code of Criminal Procedure within six weeks from the date of receipt of a copy of this order.