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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 10 of 1979.

Appeal by Special Leave from the Judgment and Order dated 12-10-1978 of the Madhya Pradesh High Court in Criminal Revision No. 336 of 1978.

D. N. Mukherjee and N. R. Choudhary for the Appellant. Dalveer Bhandari for Respondent No. 1.

The Judgment of the Court was delivered by CHINNAPPA REDDY, J. On the report of the Station House Officer, Manak Chowk, Ratlam, that there was a dispute between Mathuralal and Bhanwarlal concerning a house situated in Kambalpatti, Ghas Bazar, Ratlam, which was likely to cause a breach of the peace, the Sub Divisional Magistrate, Ratlam, passed a preliminary order under Section 145(1) of the Code of Criminal Procedure 1973, on Ist March, 1978. On 2nd March, 1978, the learned Magistrate attached the subject of dispute under Section 146(1) Criminal Procedure Code considering the case to be one of emergency. Thereafter, when the learned Magistrate wanted to proceed with the enquiry under Section 145 Criminal Procedure Code, an objection was raised by Mathuralal that such an enquiry was incompetent once the subject of the dispute had been attached under Section 146 Criminal Procedure Code. The objection was overruled by the learned Magistrate. Successive Revisions taken before the Sessions Judge and the High Court having borne no fruit, Mathuralal has filed the present appeal by special leave of this Court. The High Court, we may mention here, thought that the matter was concluded against the appellant by the decision of this Court in Chandu Naik & Ors. v. Sitaram B. Naik & Anr.(1) Shri Mukherji, learned counsel for the appellant urged that under Section 146 of the Criminal Procedure Code of 1973, an attachment of the subject of dispute could be effected in three situations: (i) if the Magistrate at any time after making the order under Section 145(1) considered the case to be one of emergency, or (ii) if he decided that none of the parties was then in such possession as was referred to in Section 145, or (iii) if he was unable to satisfy himself as to which of them was then in such possession of the subject of dispute. The attachment so effected, regardless of the situation consequent upon which it was effected, was to subsist until a competent Court determined the rights of the parties with regard to the person entitled to possession. This, he urged, clearly indicated that after an attachment was effected it was the Civil Court and not the Magistrate that was to have further jurisdiction in the matter. He contrasted the provisions of Section 146(1) of the present code with the provisions of Section 146(1) and the third proviso to Section 145(4) of the Criminal Procedure Code of 1898 as amended by Act 26 of 1955. He drew our attention to the circumstance that the third proviso to Section 145(4) of the old Code empowered the Magistrate, if he considered the case one of emergency, to attach the subject of dispute pending his decision under that Section, while Section 146(1) of the previous Code empowered the Magistrate to attach the subject of dispute if the Magistrate was of the opinion that none of the parties was then in possession or if the Magistrate was unable to decide as to which of them was in such possession and thereafter to refer to the Civil Court for decision the question whether any and which of the parties was in possession of the subject of dispute. Therefore, he said, under the previous Code, in the case of attachment because of emergency the Magistrate was himself competent to decide the question of possession and in the other two cases he was to refer the dispute to the Civil Court, whereas, under the present Code, in all the three situations the Magistrate was to leave the matter for adjudication by the Civil Court. Thus, the submission of Shri Mukherji was that while under the previous Code it was permissible to attach the subject of dispute pending enquiry by the Magistrate as contemplated by Section 145, such attachment pending decision by the Magistrate was not permissible under the provisions of the present Code. According to him so soon as the Magistrate effected an attachment he had nothing further to do except await the decision or the directions of the Civil Court.

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 other 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. Paran Chandra Mandal(1), in arriving at our conclusion. We may also add that the question now at issue did not arise for consideration in Chandu Naik & Ors. v. Sitaram B. Naik & Anr. (supra). What was decided there was that a proceeding under Section 145 Criminal Procedure Code did not abate because of Section 8 of the Maharashtra Vacant Land (Prohibition of unauthorised Occupation and Summary Eviction) Act, 1975. In the result the appeal is dismissed.