Kisun Yadav v. Asharfi Yadav — 1989 DIGILAW 447 (PAT)

Judgment 1. This application under Secs. 397 and 401 of the Code of Criminal Procedure, 1 973 (in short the Code) is directed against the order dated 17-2-1986 passed by the learned Sub-divisional Magistrate, Begusarai in Case No. 1967M/85 in a proceeding under Sec. 145 of the Code by which the learned Magistrate started a proceeding under Sec. 144 of the Code, converted the same under Sec. 145 of the Code and also passed an order for the plucking of the standing chilli crops from the disputed land in presence of the Circle Officer who was appointed as a receiver. 2. It appears that a proceeding under Sec. 144 of the Code was started by the learned Magistrate on 8-1-1986. Show cause notices were issued on the parties. In compliance of this order the parties appeared before the learned Sub-divisional Magistrate and prayed for time to file the show cause. Before however any show cause could be filed, on 30-1-1986 the first party (the present Opposite Party No. 1) had filed a petition before the court praying that the chilli crop on the land in dispute may be ordered to be plucked by any appropriate officer. On this a report was called for from the Circle Officer. 3. On 17-2-1986 the matter was heard by the learned Sub-divisional Magistrate who without waiting for the show cause of the parties or without appointing the receiver as prayed for by the first party illegally converted the said proceeding into one under Sec. 145 of the Code and by the same order simultaneously issued the notice under Sec. 146 of the Code. It has been contended that the procedure followed by the learned Magistrate was illegal since the proceeding under Sec. 144 of the Code could not be converted into one under Sec. 145 of the Code without waiting for the filing of the show cause of the parties. Also the learned Magistrate had passed an illegal order of attachment under Sec. 146 of the Code simultaneously with the order initiating the proceeding under Sec. 145 of the Code. It is not permissible in law. Also the learned Magistrate had passed an illegal order of attachment under Sec. 146 of the Code simultaneously with the order initiating the proceeding under Sec. 145 of the Code. It is not permissible in law. It has further been contended that the impugned order is not in accordance with the provisions of the Code inasmuch as while initiating the proceeding under Sec. 145 of the Code the learned Magistrate had not stated the grounds of satisfaction nor she had required the parties concerned in dispute to attend the court and to file their written statements. The learned Subdivisional Magistrate wrongly assumed the jurisdiction in the garb of emergency to pass an order under Sec. 146 of the Code. Such a mixed order under the provisions of Secs. 144, 145 and 146 of the Code is not permissible in law. On these grounds, it has been contended that the impugned order dated 17-2-1986 passed by the learned Subdivisional Magistrate be quashed. 4. Before proceeding to decide the various contentions of the parties, I think that it will be useful to quote in extenso the order passed by the learned Subdivisional Magistrate on 17-2-1986 which runs as follows : "The record was put up for order today. The present proceeding under Sec. 144 of the Code of Criminal Procedure was drawn up on receipt of petition of the first party. In the petition the first party has stated that there is grave apprehension of breach of peace at the spot of the disputed land on account of the O.P. and on the disputed land the Chilli crop is getting completely destroyed as it is ripe and it has to be plucked immediately else it will rot on the spot. The learned Advocates on behalf of both the parties have supported this fact that the chilli crop is ripe and fit to be plucked and that it should be plucked by some Government agency and kept in safe custody till the matter is settled and decided. Taking the above stated facts into consideration, I am convinced that there is bona fide land dispute between the members of both the parties and there is grave and imminent danger of apprehension of breach of peace at the disputed land. Hence the proceeding is converted to the proceeding under Sec. 145, Cr. Taking the above stated facts into consideration, I am convinced that there is bona fide land dispute between the members of both the parties and there is grave and imminent danger of apprehension of breach of peace at the disputed land. Hence the proceeding is converted to the proceeding under Sec. 145, Cr. P.C. Also since it is highly emergent that the chilli crop be plucked so that the party concerned can be saved from imminent loss. Let notice under Sec. 146 Cr. P.C. be issued. The Chilli crop will be plucked in presence of Circle Officer who is appointed the receiver and the proceeds from same will be awarded to the party concerned when the case is finally decided. Put up on 20-3-1986." 5. From the impugned order quoted above, it becomes clear that the learned Magistrate has not expressly passed any order of attachment of the subject matter of dispute though he had ordered for the issue of notice under Sec. 146 of the Code. Also it appears that the Circle Officer was appointed as receiver and he was directed to get the standing chilli crop plucked in his presence. 6. The main criticism of the petitioners against this order is that the learned Sub-divisional Magistrate could not have passed the order under Sec. 146 of the Code simultaneously with the conversion of the proceeding under Sec. 144 of the Code to one under Sec. 145 of the Code. It was pointed out that the proceeding under Sec. 146 of the Code could be started only after the initiation of the proceeding under Sec. 145 of the Code and after the parties had filed their written statements. Further it was pointed out that no proceeding under Sec. 146 of the Code could be started without the existence of any one of the three conditions mentioned in Sec. 146(1) of the Code. Learned Counsel for the Opposite Party has challenged these contentions and under these circumstances I feel that it will be useful to properly examine the matter. In support of their contention both the parties have relied on some case laws. 6A. Before, however, taking up for consideration the various decisions relied upon by the parties on this point, I think it will be useful to see the scheme of the Code. So far as Secs. In support of their contention both the parties have relied on some case laws. 6A. Before, however, taking up for consideration the various decisions relied upon by the parties on this point, I think it will be useful to see the scheme of the Code. So far as Secs. 144, 145 and 146 of the Code are concerned, Chapter X of the Code deals with maintenance of Public order and tranquillity. It has been sub-divided into various parts. Its part-C contains Sec. 144 of the Code. It runs as follows : "144 Power to issue order in urgent cases of nuisance or apprehended danger : - (1) In cases where, in the opinion of a District Magistrate a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may by a written order stating the material facts of the case and served in the manner provided by Sec. 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray." 7. So far as Secs. 145 and 146 of the Code are concerned, they have been put under the division D which deals with dispute as to immovable property. So far as Secs. 145 and 146 of the Code are concerned, they have been put under the division D which deals with dispute as to immovable property. Sec. 145 of the Code provides that the procedure where dispute concerning any land or water likely to cause breach of peace is concerned, Sec. 145(1) of the Code runs as follows :- "Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of peace exists concerning any land or water or the boundaries thereof within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute." 8. Sec. 146 of the Code relates to the power of the Magistrate to attach the subject of dispute and to appoint receiver. Sec. 146(1) of the Code runs as follows : "146(1). If the Magistrate at any time after making the order under Sub-sec. (1) of Sec. 145 considers the case to be one of emergency or if he decides that none of the parties was then in such possession as is referred to in Sec. 145 or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof : Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any livelihood of breach of the peace with regard to the subject of dispute." 9. Thus a plain reading of Sec. 145(1) and Sec. 146(1) of the Code clearly goes to show that the order under Sec. 146(1) can only be passed after the Magistrate makes the order under Sec. 145(1) of the Code. This is not all. Thus a plain reading of Sec. 145(1) and Sec. 146(1) of the Code clearly goes to show that the order under Sec. 146(1) can only be passed after the Magistrate makes the order under Sec. 145(1) of the Code. This is not all. Before an order under Sec. 146(1) of the Code can be passed by the Magistrate he has to satisfy himself that the (1) the case is one of emergency, or (2) if he decides that none of the parties was then in such possession as is referred to in Sec. 145, or (3) if he is unable to satisfy himself as to which of them was then in such possession of the subject of the dispute. Under any of these circumstances, Sec. 146(1) of the Code empowers the Magistrate to attach the subject matter of the dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. As noticed above the order under Sec. 146(1) of the Code can only be passed after the Magistrate had already made an order under Sec. 145(1) of the Code. It would, thus, appear that passing of an order under Sec. 145(1) of the Code is the first condition to be satisfied before any order under Sec. 146(1) of the Code can be passed. It may also be noticed that in all the proceedings under Sec. 145(1) of the Code the order of attachment as contemplated under Sec. 146(1) of the Code cannot be passed. An order under Sec. 146(1) of the Code can only be passed if any of the three conditions mentioned in this section are satisfied. So far as condition Nos. 2 and 3 are concerned naturally they cannot be satisfied unless the Magistrate decides that none of the parties was then in such possession or if he finds himself unable to satisfy himself as to which of them was then in possession. These two conditions can only be satisfied after the Magistrate examines the respective cases of the parties on the basis of the written statements filed by them. So far as the first condition is concerned, obviously, the order under Sec. 146(1) of the Code can be passed at any time after making an order under Sec. 145(1) of the Code if the learned Magistrate considers the case to be one of emergency. So far as the first condition is concerned, obviously, the order under Sec. 146(1) of the Code can be passed at any time after making an order under Sec. 145(1) of the Code if the learned Magistrate considers the case to be one of emergency. From the scheme of these Sections, it becomes clear that the order under Sec. 146(1) of the Code on the ground of emergency can be passed by the Magistrate but only after an order under Sec. 145(1) of the Code has already been passed. The question that now arises for consideration is whether these two orders can be passed simultaneously or not. 10. It was the contention of the learned counsel for the petitioners that these two orders cannot be passed simultaneously. It has been submitted that to enable a Magistrate to pass an order under Sec. 146(1) of the Code a proceeding under Sec. 145(1) of the Code must be in existence from before. No order under Sec. 146(1) of the Code can be passed in absence of a proceeding under Sec. 145 of the Code. In particular, learned counsel for the petitioners has placed reliance on the case of Mahendra Tewari V/s. Mostt. Lal Pari Devi, ( 1981 BBCJ 570 ): 1982 Cri LJ 17. This is Division Bench decision of this Court. In paragraph 5 of this decision it has observed as follows 1982 Cri LJ 67 at page 18 : "From discussion of the above cases this much is clear that an order of attachment cannot be passed simultaneously in the sense that a Magistrate, while initiating a proceeding under Sec. 145 of the Code cannot, at the same time also make an order of attachment. An order of attachment has got to be made subsequent to the initiation of the proceedings in the circumstances mentioned in Sec. 146(1) of the Code. Sufficient support can be derived for this view from the second case of the Supreme Court mentioned above." 10A. Before coming to the above mentioned conclusion the Hon ble Judges constituting this Bench had placed reliance on the two cases of the Supreme Court namely the case of Chandu Naik V/s. Sita Ram B. Naik ( AIR 1978 SC 333 ): 1978 Cri LJ 356 and Mathura Lal V/s. Bhanwar Lal, ( AIR 1980 SC 242 ): 1980 Cri LJ 1. It was only after discussing the judgments of these two cases that the Division Bench has made the observation as quoted above in paragraph 5 of the judgment. 11. In this connection, a reference may also be made to the case of Mathura Lal (supra) ( AIR 1980 SC 242 ): 1989 Cri LJ 1. From this decision it would appear that before the Hon ble Supreme Court the question that came up for determination was that whether after making an order of attachment under Sec. 146 of the Code can the Magistrate proceed with the (case) under Sec. 145 of the Code. It was held that Sec. 146 of the Code cannot be separated from Sec. 145 of the Code and it can only be read in the context with this section. It was further held that in case of emergency a Magistrate may attach the property at any time after making the preliminary order under Sec. 145(1) of the Code. There is no express stipulation in Sec. 146 that the jurisdiction of the Magistrate ends with the attachment nor is it implied. Far from it. The obligation to proceed with the enquiry as prescribed by Sec. 145(4) is against any such implication. An emergency is the basis of attachment under the first limb of Sec. 146(1) of the Code and if there is an emergency no one can say that there is no dispute which is likely to cause breach of peace. 12. In the case of Chandu Naik, 1978 Cri LJ 356 (supra) the nature and scope of Secs. 145 and 146 of the Code came up for consideration before the Hon ble Supreme Court. In this case on a petition filed on behalf of the respondents under Sec. 145 of the Code a Magistrate passed a preliminary order under this section and attached the disputed property under Sec. 146 of the Code. In paragraph 7 of this judgment the procedure in accordance with the various provisions of Sec. 145 of the Code has been indicated. However, from this decision it would appear that the learned Magistrate had passed a simultaneous order under Sec. 145(1) of the Code and under Sec. 146 of the Code and this was not adversely commented upon by the Supreme Court. 13. Learned counsel for the opposite party has placed reliance on the case of Baijnath Choubey and others V/s. Dr. However, from this decision it would appear that the learned Magistrate had passed a simultaneous order under Sec. 145(1) of the Code and under Sec. 146 of the Code and this was not adversely commented upon by the Supreme Court. 13. Learned counsel for the opposite party has placed reliance on the case of Baijnath Choubey and others V/s. Dr. Ram Ekbal Choubey and others reported in 1981 PLJR 317: (1981 Cri LJ NOC 212 (Pat)). This is a Single Bench decision of this Court. In this case it was held that under the facts and circumstances of the case a composite order of initiation of a proceeding under Sec. 145 and an order of attachment under Sec. 146 of the Code can be validly passed notwithstanding the omission of the expression emergency in the Magistrates order. In this case reliance has been placed on a number of decisions including the decision in the case of Chandu Naik (supra) AIR 1978 SC 333 ): 1978 Cri LJ 356. Also a reference has been made to the decision of Gaya Singh and others V/s. Duman Singh, ( AIR 1979 Pat 246 ): 1979 Cri LJ 1110 (FB). It appears that before this Full Bench the question for consideration was whether under the provisions of new Code a Magistrate initiating a proceeding under S.145(1) of the Code could attach the subject-matter of the dispute under S.146(1) of the Code without hearing the parties. Even in this Full Bench also a reliance was placed on the case of Chandu Naik, 1978 Cri LJ 356 (supra) and it was observed as follows (1979 Cri LJ 1110 at page 1113) : "In view of this pronouncement it has to be held that even under the new Code it is open to the Magistrate while initiating a proceeding under S. 145 to attach the subject-matter in dispute without hearing the other side." The learned Single Judge after taking into consideration the decision of the Supreme Court in the case of Chandu Naik, 1978 Cri LJ 356 (supra) has observed as follows : "Thus there is no scope for any argument now that a composite order of initiating the proceeding and of attaching the land even without hearing the other side is quite legal." 14. It was, however, pointed out in this connection that the matter for consideration before this Bench or before the Hon ble Supreme Court in the case of Chandu Naik, 1978 Cri LJ 356 (supra) was whether the order of attachment under S. 146(1) of the Code can be passed even without hearing the parties or not. The answer to this question was obviously in affirmative in view of the fact that the order under S. 146(1) of the Code can be passed in the case of emergency also and the emergency cannot wait for the appearance of the parties. Learned counsel for the petitioners has submitted that he also accepts the ratio of these decisions. It was, however, his contention that his main grievance against the impugned order is that the order for issue of notice under S.146 of the Code and for getting the chilli crops plucked by the Circle Officer who was appointed as receiver cannot be passed simultaneously with the order under S. 145 of the Code. It has been pointed out that the order under S.146(1) of the Code can be passed only after an order under S.145(1) of the Code is passed. It has also been submitted that under the facts and circumstances of this case it does not appear to be a case of emergency. 15. From perusal of the impugned order, however, it would appear that the learned Magistrate had not passed the order of attachment of the subject-matter of dispute under the provisions of S. 146 of the Code. He had simply passed the order for the issue of notice under this section and not an order of attachment. Thereafter he has proceeded to appoint the Circle Officer as the receiver with a direction that the Chilli crop will be plucked in his presence. Since in the impugned order there is no order attaching the subject-matter of dispute the discussion made above on the question whether or not a composite order under S. 145(1) of the Code can be passed simultaneously with an order of attachment under S. 146(1) of the Code becomes only of academic interest. However, since these questions were raised by the learned counsel for the petitioners and were countered by the learned counsel for the Opposite Parties, I have dealt with them in detail. 16. However, since these questions were raised by the learned counsel for the petitioners and were countered by the learned counsel for the Opposite Parties, I have dealt with them in detail. 16. In the present case, however, as is clear, no order of attachment has been passed under S.146 of the Code. The question that will now arise for consideration would be whether under the given situation any receiver can be appointed with a direction to get the chilli crop plucked in his presence. It may be pointed out here that a receiver could be appointed only under the provisions of S. 146 of the Code and that also only after the Magistrate attaches the subject-matter of dispute under the provisions of this section as becomes clear from sub-section(2) to S.146. It has been contended on behalf of the petitioners that since in the present case no order of attachment has been passed, no order under the provisions of Sub-sec. (2) of S. 146 could be passed by the learned Magistrate appointing a receiver directing him to get the chilli crop plucked in his presence. Under this circumstance, it becomes clear that the order passed by the learned Magistrate appointing a receiver with a direction that he should get the chilli crop plucked in his presence is obviously without jurisdiction. Moreover, so far as the question of emergency is concerned the learned Magistrate has not stated how she is satisfied that this is a case of emergency to warrant an order under S.146(1) of the Code. On the other hand, she has only ordered for issue of notice under S.146 of the Code to show cause. 17. From these discussions, it becomes clear that the impugned order which is a composite order under Ss. 144,145 and 146 of the Code is not in terms of the law on the subject and, therefore, cannot be sustained in the eye of law. 18. In the result, this application is allowed and the impugned order is hereby quashed. Petition allowed.