Patna High Court
Bechan Mahto And Ors. vs State Of Bihar And Anr. on 7 May, 1987
Equivalent citations: 1988CRILJ1426
JUDGMENT S.S. Sandhawalia, C.J.
1. Is the order of attachment of immovable property under Section 146(1) of the Code of Criminal Procedure, 1973, interlocutory in nature within the meaning of Section 397(2) of the said Code? This is the somewhat salient issue necessitating this reference to the Division Bench. Equally at issue is the correctness of the cryptic observation of the learned single Judge in Ishri Gope v. Krishna Kumari Devi 1978 BLJR 220 : 1977 Cri LJ NOC 195 holding to the contrary.
2. It is manifest that the issue aforesaid is pristinely legal and stems from facts which lie in a narrow compass and, therefore, deserve notice with relative brevity. Opposite Party No. 2 Baleshwar Mahto had initiated the proceeding by filing a petition before the Sub-DivisionalMagistrate, Gopalganj, under Section 144 of the Code of Criminal Procedure (hereinafter to be referred to as 'the Code'), with respect to the disputed pieces of land situate in villages Aithi, Ratanpur and Koha Poha within the jurisdiction of Bijaipur. The learned Sub-Divisional Magistrate called for a report from the local police and a proceeding under Section 144 was initiated which was subsequently converted into one under Section 145 and the case was transferred to the Court of Shri Ram Lakhan Prasad, Executive Magistrate, Gopalganj. Before him, opposite party No. 2 then filed a petition for attachment of the land in dispute under Section 146(1) of the Code which was directed to be forwarded to another Executive Magistrate, Shri Kanhaiya Shrivastava, for inquiry and report. On the receipt of the said inquiry report, opposite party No. 2 filed another petition for attachment of the disputed land under Section 146(1) of the Code to which the petitioners filed a rejoinder and their objections to the inquiry report of the Executive Magistrate. However, rejecting the plea of the petitioners, the learned Magistrate, by his impugned order dated the 28th of September, 1985, attached the disputed land under Section 146(1) of the Code.
3. Aggrieved thereby, the petitioners then preferred a revision before the learned Sessions Judge of Gopalganj. This revision was, however, strenuously opposed at the very threshold as being not maintainable on the ground that the impugned order of the Magistrate was interlocutory in nature and a revision against the same was hit and barred by the provisions of Section 397(2) of the Code. In a considered judgment running into 12 typed pages, the learned Sessions Judge upheld the objection and finding that the revision was not maintainable, dismissed the same (vide his order dated the 9th of May, 1986).
4. The petitioners thereafter preferred the present criminal miscellaneous which came up for admission before my learned brother, S.B. Sanyal, J., sitting singly. Noticing the intricacy of the point and some conflict of precedent thereon, he referred the matter by the order dated 24th of November, 1986, and that is how the issue is before us now.
5. Undoubtedly, the primal and, indeed, the sole question herein which has been posed at the outset does indicate a cleavage of judicial opinion betwixt the different High Courts in the country. It would appear that the High Courts of Allahabad, Jammu and Kashmir, Himachal Pradesh and Punjab and Haryana have taken the view that the emergency order of attachment under Section 146(1) is interlocutory in nature whilst the High Courts of Bombay, Orissa and Rajasthan have tilted for a contrary view. I am inclined to the view that the issue is clinched by way of an analogy by the decision in Mathuralal v. Bhanwarlal but there is no gainsaying that even subsequent to the said judgment conflicting views continue to be taken. In a matter somewhat narrowly divided as. above, the choice of subscribing to one or the other of the rival opinions has, therefore, necessarily to be a well-considered one.
6. It is plain that the specific question herein is but a limb of the larger yet perennial legal controversy as to what constitutes a final as against a merely interlocutory order, and the penumbral area lying betwixt the two extremes. In view of the mass of conflicting case law on the point, it would appear that these two terms are not capable of so precise a definition as to be altogether exclusive of the other and it would be a vain attempt to define what seems to me as a matter defying definition. One cannot help commenting that some of the erudite attempt to confine each of the terms to a procrastean bed of a precise legal definition is reminiscent of the tautologist attempted definition of a circle as being one. which is circular. Consequently without launching into a dissertation as to what are the precise legal attributes of a final order against an interlocutory order and attempting to draw a razor-thin line betwixt the two, I would wish to confine myself to the limited focal question - whether in the peculiar mosaic of Sections 145 and 146 of the Code the attachment of immovable property under Sub-section (1) of the latter section is interlocutory in nature for the specific purposes of Section 397(2) thereof.
7. Mr. Nagendra Rai, learned Counsel for the petitioners, whilst canvassing what appears to me as an uphill proposition that the order of attachment of immovable property under Section 146(1) of the Code is not interlocutory, placed basic reliance on the single bench judgment of this Court in Ishri Gope v. Krishna Kumari Devi 1978 BUR 220 : 1977 Cri LI NOC 195 and further attempted to buttress his submission on the views expressed in Johari v. Kirori 1985 Cri LJ 1108 (Raj) and Mrs. Radha Venkata Rao v. Mrs. Prema Malhotra 1985 Cri LJ 1894 (Andh Pra).
8. Since the controversy herein must necessarily revolve around the closely connected and virtually composite provisions of Sections 145 and 146 of the Code, it is apt to quote the relevant parts thereof for facility of reference:
145(1). 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 the 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.
146(1). If the Magistrate at any time after making the order under Sub-section (1) of Section 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 Section 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 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.
9. As already noticed, judicial opinion seems to have tilted on either side and before inevitably turning to precedent it seems both refreshing and necessary to first examine the issue on principle and the aforequoted language of the statute. What prominently catches the eye here is the fact that the order of attachment under Section 146(1) of the Code is inherently temporary in nature. This seems manifest from the proviso thereto. This, in terms, declares that the Magistrate may withdraw the order of attachment at any time if he is satisfied that there is no longer any likelihood of the breach of peace with regard to the subject of dispute. Perhaps, the use of the phrase 'at any time' and the power of the Magistrate to withdraw attachment altogether (not merely modifying the terms thereof) call for pointed and significant notice. An order which has the attribute of such transience as to be likely to be withdrawn at any time, cannot, to my mind, easily be termed as a final order or even an intermediate one betwixt two extremes of the final and interlocutory. In my view, it does not lie even within that penumbral area betwixt a purely interlocutory order and a categorically final one which even on a most liberal construction may be said to become revisable under the Code. The attributes noticed above of an order of attachment under Section 146(1) of the Code would, therefore, bring it absolutely within the label of an interlocutory order.
10. Yet again, the attachment of the property and the appointment of a Receiver therefor does not in any way determine the title of the parties thereto. Consequently, the ownership of the property under attachment is not even put remotely in issue. It seens to be elementary that in fact in the whole gamut of the proceedings under Sections 145 and 146 of the Code, no question of title to the property in dispute arises betwixt the parties. At the highest, an order of attachment affects temporarily the right to possession and that too by not transferring it from one party to another, but merely taking it into custodia legis, which again, as noticed above, may be withdrawn at any time thus reverting the issue of possession to its status quo ante. The facts of title and ownership being altogether out of the arena of dispute before the Executive Magistrate and the possession and attachment also being temporary and transient in nature, are other significant attributes militating wholly against the concept of such an order of attachment being labelled as either final or quasi-final in nature.
11. Reverting now to the specific contingency where the order of attachment is not withdrawn under the proviso, it would appear that this would also merely affect the surface question of possession only for the time being. Obviously, in this situation also, the order of attachment is temporary in nature because it will subsist only as long as the proceedings under Section 145 of the Code are not concluded before the Executive Magistrate. If he determines the question as to which of the parties was in possession at the time of the preliminary order under Section 145(4) of the Code, he would inevitably direct the restoration of possession to such a party, or under the proviso to the sub-section, to any party who, in his view has been forcibly and wrongfully dispossessed within two months before the date on which the report of the police officer or other information was received by the Magistrate. It is thus obvious that the attachment subsists in this interregnum only for the period for determining the aforesaid issues. Equally under Sub-section (5) of Section 145 of the Code if it can be established before the Magistrate that no such dispute, as envisaged under the said section : exists, he would inevitably revoke the preliminary order of the court with the consequential result that the attachment of the property would also stand revoked. Even more so, in the circumstances, if a reference to the Civil Court is rendered inevitable, then the attachment of the property by the Magistrate again is subservient to the orders which the Civil Court may make with regard to the Receiver or such incidental or consequential order as it may choose to pass as the competent Court. Viewed from any angle, it appears to me that the attachment of property under Section 146(1) of the Code is transitory in nature and it needs no great erudition to hold that an order essentially ephemeral is not to be labelled as final or quasi-final.
12. Lastly, on principle even on a broader perspective of the matter, it appears to me that an order of attachment under Section 146(1)of the Code militates against its classification as being a final one and consequently revisable under Section 397(2) of the Code. It seems somewhat axiomatic that an appeal or revision is generally directed (though not inflexibly so) against an order which is either final or quasi-final or at least has some attributes of permanence. Where an order of attachment is transitory in nature and may well be in a constant state of flux to be either likely to be withdrawn, cancelled or subject to the decision in the proceeding under Section 145 of the Code or later on a reference by the competent Civil Court, then it would seem to be rather incongruous that the revisional power be exercised against such a fluctuating order. Learned Counsel for the opposite party rightly pointed out that this would mean a parallel adjudication of the same order by the inferior and superior Courts. Thus, if the proceedings before the Executive Magistrate are not stayed during the pendency of the revision (often enough as they may well not be), he may either withdraw the attachment or cancel the order under Section 145 of the Code or decide the matter and restore possession to the party entitled thereto. The revisional Court would then be left in the limbo to adjudicate upon an eerie nothing.
13. Adverting now to precedent, one may on the larger aspect notice that their Lordships in Amarnath v. State of Haryana expressly observed that under the Code there would be necessarily orders which are interlocutory in nature and thus beyond the arena of revision. Without being exhaustive or attempting to specify the innumerable such orders, they observed illustratively Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps-in-aid of the proceedings may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code....
14. It is manifest from the aforesaid authoritative enunciation that the attachment of property here is again nothing but a step-in-aid in the pending proceedings under Section 145 of the Code. It is nobody's case before us that the attachment of immovable property is an imperative or mandatory requirement of the law. It is only an enabling provision and the wide discretion is left to the Magistrate to attach property conditioned on the fact that he considers the case to be one of emergency or the other requirements specified under Section 146(1). Sections 145 and 146 of the Code are intended to prevent a breach of peace and to take measures against its continued likelihood. Attachment of immovable property herein is to be resorted to only as a step-in-aid to the pending proceedings in this regard. It thus seems to me as fully covered by the classification or categorization of interlocutory orders by the final Court in Amarnath's case (supra).
15. More directly, pride of place must be given to the landmark case of Mathuralal v. Bhanwarlal . Undoubtedly, there was a sharp cleavage of opinion among the High Courts prior thereto and their Lordships noticed the same and finally set it at rest. It appears to me that the true ratio of Mathuralal's case and its import have either not been noticed or not adequately been appreciated in the subsequent judgments taking the contrary view. In the said case, their Lordships painstakingly juxtaposed the provisions of Sections 145 and 146 under the old Code of 1898 and later after its amendment of 1955 and lastly in the present Code of 1973. Analysing the same and putting it through the crucibles of a contextual construction in preference to an isolationist one and on principle and earlier precedent it was concluded as under:
In our view, it is wrong to hold that the Magistrate's jurisdiction ends as soon as an attachment is made on the ground of emergency. A large number of cases decided by several High Courts some taking one view and the others a different view were read to us. We do not consider it necessary to refer to them except to acknowledge that we derived considerable assistance from the judgment of Lahiri, J., in Kshetra Mohan Sarkar v. Puran Chandra Mandal, 1978 Cri LJ 936." Now, a reference to the Division Bench, judgment in Kshetra Mohan Sarkar v. Puran Chandra Mandal 1978 Cri LJ 936 (Gauhati) would show that it was categorically held therein as well that a proceeding under Section 145 of the Code does not in any way come to an end after an order of attachment is made under Section 146(1) of the Code on the ground of emergency and for arriving at this conclusion, the Division Bench dissented from the contrary view in (i) 1976 Cri LJ 1150 (Patna), (ii) 1976 Cri LJ 1915 (Delhi) and (iii) 1977 Cri LJ 563 (Rajasthan) and consequently overruled the earlier view in 1977 Assam LR 58. It would be thus manifest that their Lordships in Mathuralal v. Bhanwarlal (supra) by reference and implication have overruled the aforesaid earlier views of the Patna, Delhi and Rajasthan High Courts. Even otherwise, it appears to me that the sheet anchor of the contrary view that the order of attachment under Section 146(1) is not interlocutory restedon the assumption that the Magistrate's jurisdiction ends as soon as an attachment is made on the ground of emergency under Section 146(1). That assumption has been given a decent burial in Mathuralal v. Bhanwarlal's case by their Lordships of the Supreme Court. Consequently, the very cornerstone of the contrary view, to my mind, has thus now disappeared.
16. In the light of the above, it would be wasteful to multiply authority and it suffices to mention that for the detailed reasons enunciated earlier I would concur with the view in the Full Bench judgments in Brij Lal Chakoo v. Abdul Ahad Nishati 1980 Chand LR(Cri.) 50 : 1980 Cri LJ 89(J&K); Puran v. State of Himachal Pradesh 1977 Chand LR (Cri.) 10 (Himachal Pradesh) and Inder Deo Pandey v. Smt. Bhagwati Devi 1981 All LJ 687 and the Division Bench judgments of Punjab and Haryana High Court in Mohinder Singh v. Dilbagh Rai 1977 Cri LJ 1029 and Kartar Singh v. Smt. Pritam Kaur 1984 Cri LJ 248.
17. In fairness to Mr. Nagendra Rai, one must first notice his reliance on the single Bench decision of Rajasthan High Court in Johari v. Kirori 1985 Cri LJ 1108. A perusal thereof would show that the learned single Judge did not choose to come to any independent conclusion and merely followed an earlier Division Bench judgment of the Rajasthan High Court in Sita Ram v. Ghasiram 1979 Cri LR (Suppl.)20. Apparently that judgment was rendered prior to the case of Mathuralal v. Bhanwarlal and even otherwise counsel appear to have been sorely remiss in not bringing to the Bench's notice the aforesaid authoritative pronouncement. Even otherwise the learned single Judge noticed the contrary view of as many as four other judgments of Allahabad and Punjab and Haryana High Courts, but without delving in detail by distinguishing the same, merely declined to refer the matter to a larger Bench by following Sitaram v. Ghasiram's case (Supra). With the deepest respect, it appears to me that the case of Johari and Ors. v. Kiror and Ors. (supra) is contrary to the basic ratio in Mathuralal's case and, even otherwise, on principle, I would with the deepest deference, differ with the same and record a dissent therefrom.
18. What has been said above would apply mutatis mutandis to the judgment of the learned single Judge of the Andhra Pradesh High Court in Mrs. Radha Venkata Rao v. Mrs. Prema Malhotra 1985 Cri LJ 1894 on which also reliance was placed on behalf of the petitioner. In the said case also, Mathuralal v. Bhanwarlal seems to have missed notice and the view of the Allahabad High Court in Smt. Premlata v. Ram Lubhaya 1978 Cri LJ 1822 and the Punjab and Haryana High Court in Shishu v. State of Haryana 1982 Cri LJ 124 has been dissented from in preference to the Rajasthan view. For identical reasons given above, with the deepest deference, I would record my dissent from the decision in Mrs. Radha Ventaka Rao v. Mrs. Prema Malhotra 1985 Cri LJ 1894:
19. Inevitably, one must now advert to a single Bench judgment of this Court in Ishri Gope v. Krishna Kumari Devi, 1978 BLJR 220 : 1977 Cri LJ NOC 195 taking a contrary view. A perusal of the short judgment would indicate that the issue was hardly debated before the learned single Judge. Neither any principle nor precedent seems to have been cited or noticed. A matter, which as noticed involved a sharp cleavage of opinion, was disposed of as one of first impression cryptically in the following four lines:
An order of attachment under Section 146 of the Code is not an interlocutory order. It is a final order in the sense that thereafter no further orders can be passed in the proceeding by the Criminal Court. The attachment has to remain in force till the question of possession is decided by a competent Civil Court. It is ordinarily the last order passed by a Criminal Court in the proceeding, and thus final.
The aforesaid observations made as a dictum unbuttressed by any reasoning or authority are now in the teeth of the ratio in Mathuralal v. Bhanwarlal's case 1980 Cri LJ 1(SC). With the deepest deference, the aforesaid observations are not good law and are hereby overruled.
20. To finally conclude, both on principle and precedent, the answer to the question posed at the very outset is rendered in the affirmative and it is held that an order of attachment of an immovable property under Section 146(1) of the Code is interlocutory in nature within the meaning of Section 397(2) of the Code and consequently no revision against the same is maintainable.
21. Once the aforesaid conclusion is arrived at, the wind is taken out of the sails of the submissions made on behalf of the petitioner. The learned Sessions Judge was thus eminently right in holding that no revision before him was maintainable in view of clear provision of Section 397(2) of the Code. Affirming the said view, I find no merit whatsoever in the present Criminal Miscellaneous application and it is hereby dismissed.
S.B. Sanyal, J.
22.I agree.