Patna High Court
Gaya Singh And Ors. vs Doman Singh on 19 March, 1979
Equivalent citations: AIR1979PAT246, 1979CRILJ1110, AIR 1979 PATNA 246, AIR 1979 (NOC) 120 (PAT), 1979 BLJ 348, 1979 BLJR 482, (1979) PAT LJR 324
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. This case has been referred to a Full Bench for consideration of the questions as to whether under the provisions of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the new Code), a Magistrate initiating a proceeding under Section 145 of the said Code, can attach the subject matter of the dispute under Section 146 (1) without hearing the parties, and as to whether while the order of attachment continues, he can proceed to dispose of the said proceeding.
2. The petitioners in this application are members of the second party in a proceeding under Section 145, which was initiated on 31-5-1975 on the basis of a petition filed by the first party-opposite party. Learned Magistrate, the same day after hearing only the opposite party, attached the subject matter in dispute under Section 146 (1) saying :--
"It appears to me a case of emergency nature, the land mentioned in the petition at pages six to ten is attached under Section 146 (1) Cr. P. C."
The petitioners questioned the legality of the said order on the ground that the Magistrate concerned had no authority in law to attach the subject matter of the dispute without hearing the petitioners. This argument was advanced on the basis of a Bench decision of this Court in the case of Khedu Mahto v. Smt. Prem Sundari (1975 BBCJ 856). In the aforesaid Bench decision, it was held that under the new Code there is no scope of an interim attachment during the pendency of the proceeding : once the order of attachment is passed it is to continue until a competent court has determined the rights of the parties thereto, unless at some stage the Magistrate is satisfied that there is no longer any likelihood of breach of peace. It was further held that as the order of attachment was to affect a valuable right of one of the parties to the proceeding and likely to continue, in many cases for years till the dispute is decided by the civil Court, the party, which is not before the court, should be heard before such order of attachment is passed.
3. This case was listed for hearing before a Bench presided over by Madan Mohan Prasad and Shivanugrah Narain, JJ. That Bench was of the view that at the time of initiating the proceeding under Section 145 or any time thereafter, a Magistrate can pass an order of attachment under Sub-section (1) of Section 146 even without hearing the parties and such order shall not be per se illegal as held by the earlier Bench decision of this Court. It was also observed that having attached the subject matter in dispute, being satisfied about the existence of emergency, it is always open to the Magistrate concerned to withdraw the said attachment after the emergency disappears and then to proceed with the hearing of the case. On that view, this case was referred to a Full Bench on 25-8-1976.
4. Sections 145 and 146 have a chequered career. They have been undergoing changes from time to time, perhaps with the sole object to find out a procedure by which a dispute regarding the actual physical possession of land can be decided as early as possible so as to avoid any apprehension of breach of the peace prior to the amendment of the Code of Criminal Procedure, 1898 (hereinafter referred to as the old Code) : by Act XXVI of 1955, there was provision for two types of attachments of the subject matter in dispute. One was under proviso to Sub-section (4) of Section 145 which was in the nature of an interim attachment and was to continue during the pendency of the proceeding. The other was under Section 146 of the old Code which was to last till the matter is decided by a competent court, meaning thereby the Civil Court. In many cases, this attachment under Section 146 lasted for years, sometime even for a decade. As such, by the aforesaid Amendment Act XXVI of 1955 Section 145 as well as Section 146 were amended. The provision of interim attachment was retained whereas in Section 146 a provision was made to enable the Magistrate to refer the dispute to the Civil Court and then to pass an order in conformity with the finding recorded by the Civil Court. Now under the new Code again there have been substantial changes in Sections 145 and 146. For the purpose of this case, it may be pointed out that the proviso to Sub-section (4) enabling the Magistrate to attach the subject-matter of proceeding pending his decision was deleted and a clause was added in Section 146 vesting power in the Magistrate to attach the subject matter in dispute in case of emergency. The remaining portion of the new Section 146 substantially incorporated Section 146 as it stood prior to the amendment by the aforesaid Act XXVI of 1955. Sub-section (1) of Section 146, as it stood prior to 1955, was as follows :--
"If the Magistrate decides that none of the parties was then in such possession or is unable to satisfy himself as to which of them was then in such possession of the subject matter of dispute, he may attach it until a competent court has determined the rights of the parties thereto, or the person entitled to possession thereof : Provided that the Dist. Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to subject of dispute".
On a plain reading, the Magistrate could attach the subject matter of dispute only under two contingencies, (i) if he decides that none of the parties was then in such possession, or (ii) he is unable to satisfy himself as to which of them was then in possession of the subject in dispute. The attachment made was to last until a competent court determined the rights of the parties thereto or the person entitled to possession thereof. New Sub-section (1) of Section 146 is as follows:
"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 hereto 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 likelihood of breach of the peace with regard to the subject of dispute."
This Sub-section (1) of Section 146 while retaining the other two conditions under which a subject matter in dispute could be attached by the Magistrate concerned, added one more clause saying that when the Magistrate considers the case to be one of emergency, he may attach the subject of dispute. The words "until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof", on plain reading govern all the three clauses.
5. The proviso of the new Sub-section (1) of Section 146 is the same as it was prior to 1955 vesting the power in the Magistrate to withdraw the attachment at any time if he is satisfied that there is no longer likelihood of breach of the peace with regard to the subject of dispute. Madan Mohan Prasad J., in the order of reference, in view of this proviso has observed that in emergency cases the same Magistrate can withdraw the order of attachment and can proceed with the hearing of the case. With great respect, I may point out that this conclusion would have followed if in the proviso instead of the words "likelihood of breach of the peace" the word would have been 'emergency'. If there is no longer any likelihood of breach of the peace there is no question of hearing the proceeding; because, in view of Sub-section (5) of Section 145 the Magistrate has to cancel his order initiating the proceeding under Section 145 itself. Existence of apprehension of breach of the peace with regard to the subject of dispute is the foundation "of his jurisdiction to proceed with the case.
6. Now, the questions which have to be answered are as to whether it is open to the Magistrate concerned to proceed with the hearing of the proceeding after having passed an order of attachment on the ground of emergency and as to whether such order of attachment can be passed without hearing the parties. If the first question is answered in affirmative, then the second question has to be answered in negative, because in that case the attachment shall be in nature of an interim attachment which has to continue only during the pendency of the proceeding. Sub-section (1) of new Section 146 does not say in so many words that having attached the subject matter in dispute because of emergency, it is open to the Magistrate to proceed with the case. The question for consideration is as to whether it can be read in that sub-section by necessary implication. In the case of Chandu Naik v. Sitaram B. Naik (AIR 1978 SC 333 : 1978 Cri LJ 356), a proceeding under Section 145 of the new Code had been initiated on 29-7-1975 on the basis of an application filed by respondent No. 1 (before the Supreme Court). On the same date the Magistrate concerned attached the disputed property under Section 146 (1) of the Code. Therefore, written statements were filed and the Magistrate heard the case from time to time. In the meantime, the Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975 came in force. The Act was to prohibit unauthorised occupation of vacant lands in urban area of the State. Section 8 of that Act provided, inter alia, that no court shall have jurisdiction to entertain any suit, prosecution or other proceeding in respect of eviction of any person from any vacant land and if any suit or other proceeding in respect of eviction of any person is pending on the appointed date in any court, it shall abate. In view of this Section 8, the Magistrate concerned passed an order saying that he ceased to have jurisdiction to proceed with the case under Section 145. The Supreme Court quashed the said order holding that the case did not abate and it has to be disposed of by the Magistrate in accordance with the provisions of law contained in Sections 145 and 146 of the new Code. Having said so, it was observed that for the guidance of the Magistrate it was expedient in the interest of justice to indicate briefly as to how the Magistrate is to proceed in such a situation for disposing of the proceeding. Justice Un-twalia speaking on behalf of the Court, said fat p. 335 of AIR) :
"The Magistrate, in the first instance will try to conclude the proceeding in accordance with the various provisions of Section 145 of the Code. If he is able to declare the possession of either party on consideration of the evidence adduced or to be adduced before him he would do so. In that event the other party will be forbidden from creating any disturbance of the possession (including the deemed possession, in case the application of the proviso to Sub-section (4) is found necessary) of the party declared in possession. The Magistrate, then, will have to withdraw the attachment in accordance with the proviso to Sub-section (1) of Section 146, because, as per his order declaring a party in possession there would be no longer any likelihood of the breach of the peace with regard to the subject of dispute. The party not found in possession by the Magistrate will have to seek the redress of his grievance, if any, elsewhere : if, however, the Magistrate decides that none of the parties was in possession of the disputed property on the date of the order made under Sub-section (1) of Section 145 or if he is unable to satisfy himself as to which of them was then in possession of the subject of dis-put he nepd not lift the attachment until a Competent Court had determined the rights of the parties as provided for in Section 146 (1)".
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 Section 145 to attach the subject matter in dispute without hearing the other side and this attachment is to last till the proceeding under Section 145 is decided in favour of one party or the other. After that, the attachment has to be withdrawn in accordance with the aforesaid proviso to Sub-section (1) of Section 146 of the new Code, because after the decision there would be no longer any likelihood of breach of the peace with regard to the subject of dispute. The attachment according to the aforesaid judgment of the Supreme Court, is to continue till the matter is decided by a competent court only under two contingencies, i. e., (i) when the Magistrate decides that none of the parties was in possession of the disputed property, or (ii) he is unable to satisfy himself as to which of them was in such possession of the subject in dispute,
7. Learned counsel appearing on behalf of the petitioners submitted that in the aforesaid case none of the parties had urged the point that under the provisions of the new Sections 145 and 146, now there is no scope for an interim attachment and those directions had been given in the facts and circumstances of the case in question. It is difficult to accept this contention. From paragraphs 6 and 7 of the judgment, it will appear that the procedure had been indicated for the guidance of the Magistrate whenever after initiation of a proceeding under Section 145 the subject matter in dispute is attached. It will be deemed that all the relevant provisions of the new Code have been taken into consideration for the purpose of expressing the said opinion.
8. There was controversy between the different High Courts on this question. Not only this Court in the aforesaid Bench decision, but a learned single Judge of Allahabad High Court in the case of Chandi Prasad v. Om Parkash, (1976 Cri LJ 209), a learned Judge of Delhi High Court in the case of Hakim Singh v. Girwar Singh, (1976) Cri LJ 1915, a Bench of Orissa High Court in the case of Dandapani Pala v. Madan Mohan Pala (1976 Cri LJ 2014), and a learned Judge of Rajasthan High Court in the case of Mansukh Ram. v. State (1977 Cri LJ 563) had taken the view by interpreting Sub-section (1) of Section 146 of thp new Code to mean that once a Magistrate attaches the subject matter of dispute in a case of emergency, then proceeding under S- 145 of the new Code terminates and the Magistrate ceases to have any jurisdiction to proceed further in the case. According to the view expressed in the aforesaid decisions, the attachment is to continue till the matter is decided by a competent court. The contrary view was taken by a Bench of Bombay High Court in the case of Caji-tan A. D' Souza v. State of Maharashtra (1977 Cri LJ 2032) where it was held that although there is no specific provision for interim attachment during the pendency of the proceeding, but in order to give effect to the real intention of the framers of the Code Sub-section (1) of Section 146 of the Code has to be interpreted in such a manner as to vest power in the Magistrate to attach the subject matter of dispute during the pendency of the proceeding. A learned Judge of Punjab and Haryana High Court also took the same view in the case of Jagjit Singh v. Jeet Kaur (1979 Cri LJ 119). This was, of course, after the aforesaid Supreme Court judgment, when the Supreme Court in the aforesaid case has said in so many words that they purport to indicate as to how a Magistrate is to proceed for disposing of a proceeding under Section 145 when he attaches the subject matter of the dispute on the grounds of emergency after initiating a proceeding under Section 145, in my opinion, now there is no scope for any controversy on the point. Once it is held that the attachment is to continue until the conclusion of the proceeding under Section 145 only, then there is no question of hearing the other party before passing an order of attachment, as was held in the aforesaid Bench decision of this Court. That opinion was expressed on the view that the order of attachment is to continue till the dispute is decided by a Court of competent jurisdiction which may take several years, putting the right of the party who was in actual physical possession of the subject matter in dispute, in jeopardy, without hearing him.
9. It was then submitted that even if it is held on the basis of the aforesaid judgment of the Supreme Court that a Magistrate can attach the subject matter in dispute and proceed with the hearing of the proceeding in the fact and circumstances of the present case, the order of attachment having been stayed for about four years, should not be allowed to be revived. It appears that this Court at the time of admission itself stayed the operation of the order dated 31-5-1975, during the pendency of the application. The result will be that during this period, the lands in dispute were not custodia legis. Although it cannot be held as a question of law that once the operation of the order of attachment is stayed by the superior court, then at the final hearing it should be quashed. It will depend on the facts and circumstances of each case. In the facts and circumstances of the present case, I am of the view that after having allowed one of the parties to remain in possession of the subject matter in dispute, after initiation of the proceeding under Section 145 for about four years and nothing untoward having happened during this period, it will be only just and proper to quash that part of the order attaching the subject matter in dispute and to direct the Magistrate to dispose of the proceeding under Section 145 of Code as early as possible.
10. In the result I allow this application to a limited extent, only so far as the order of attachment is concerned. It is also made clear that if at any time during the pendency of the proceeding, learned Magistrate is satisfied that emergency has arisen then it will be open to him to again attach the subject-matter in dispute.
C. N. Tiwary, J.
I agree.
P. S. Sahay, J.
I also agree.