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1999 DIGILAW 1301 (MAD)

Gulam Mohammed Afsal v. Iqbal Begum

1999-11-30

CHINNAPPA REDDY

body1999
Order. In a proceeding under section 145, Criminal Procedure Code, after due enquiry, the learned Third City Magistrate has declared that the respondents are in possession of the land in dispute. The petitioner has preferred a revision against the order of the Magistrate and pending the revision he has filed this application “to direct the lower Court to take possession of the land in dispute in M.C.No. 20 of 1966 on the file of the Third City Magistrate, City Criminal Court, Hyderabad.” Now, section 145 of the Code of Criminal Procedure, is intended and designed to prevent breaches of the peace consequent on disputes affecting immovable property. It is in the nature of an emergency provision, provides for a summary enquiry, enables the Magistrate to declare the possession of a party and enjoins on him the duty to forbid all disturbance of such possession until such party is evicted in due course of law. The object of the section is not to provide a rough remedy to the parties or an opportunity of converting their civil disputes into criminal proceedings or to enable them to manoeuvre for positions of advantage in later civil litigation. Any advantage that a party may get as a result of a proceeding under section 145 is merely incidental. If it is remembered that the object of section 145 is the maintenance of peace and not to provide a remedy it will become clear that the emergency must cease with the declaration under section 145(6); thereafter, all persons concerned in the dispute are bound by the order and none can persist in raising a dispute likely to occasion a breach of the peace except on peril of being prosecuted for disobedience of the order. If the true nature of a proceeding under section 145, Criminal Procedure Code, is clearly understood it will at once become apparent that a receiver cannot be appointed to take possession of the lands in dispute pending a criminal revision in the High Court or in the Court of Session against the final order of a Magistrate under section 145(6), Criminal Procedure Code; not can such an order be stayed. It is well settled that section 561-A, does nor confer any new or additional powers on the High Court and this Court has no inherent power to appoint a receiver in proceedings coming up in revision. It is well settled that section 561-A, does nor confer any new or additional powers on the High Court and this Court has no inherent power to appoint a receiver in proceedings coming up in revision. It may however be argued that a Magistrate may attach the subject of dispute pending his decision under section 145, Criminal Procedure, and the High Court acting in revision must also be held to possess this power. This argument is fallacious. The foundation of the jurisdiction of a Magistrate to attach the subject of dispute or to appoint a receiver is the existence of a likelihood of a breach of the peace. Where a party has been put in possession of lands in pursuance of a final order of a Magistrate there can no longer be any apprehension of a breach of the peace unless the party invoking the revisional jurisdiction of the Superior Court defies the order and the Superior Court will certainly refuse to countenance any such defiance. What has been said regarding the appointment of receiver applies with the same force to the staying of a final order under section 145(6). The High Court cannot revive an emergency which has ceased by staying operation of the order or by appointment of a receiver. It is on this reasoning that the question of stay of an order under section 145(6) and appointment of receiver has been treated as one of jurisdiction and it has been held in Marudaya Thevar v. Shanmuga Sundara Thevar1, and Munia Servai v. Thengayya Ontuniar2, that the High Court has no jurisdiction to make such orders. I would have been content to follow the learned Judges who decided these cases but I have preferred to restate their and my reasons not because I can add anything to what they have already said but because of the large number of applications which are being filed in the High Court ignoring those decisions. The petition is therefore dismissed. G.S.M. ----- Petition dismissed.