Dandapani Pala and Others vs Madan Mohan Pala and Others

R.N. Misra, J.—Members of the first party in a proceeding u/s 145 of the Code of Criminal Procedure are the petitioners and they challenge the order of the learned Sessions Judge of Gunjam passed on a revision application by members of the second party.

On 12-6-1975, on the report made by the local police, the Executive Magistrate at Chatrapur drew up a proceeding u/s 145 of the Code of Criminal Procedure and made a preliminary order. Members of the first party moved the learned Magistrate that in spite of the initiation of the proceeding, members of the second party were threatening to forcibly cultivate the property. Being satisfied that there was grave emergency concerning the disputed properties, the learned Magistrate attached the properties u/s 146(1) of the Code and directed appointment of a receiver While doing so, he indicated:

...Proceeding u/s 145 Criminal Procedure Code has already been started in this Court and it will continue. ............

The order attaching the property, appointing a receiver and directing the proceeding u/s 145 of the Code to continue was subjected to revision before the learned Sessions Judge at the instance of the members of the second party. The learned Sessions Judge overruled the objection of the members of the first party that no revision lay as the impugned order was an interlocutory one. He came to hold that there was no material for the conclusion that there was existence of emergency which would enable invoking application of Section 146 of the Code and indicated that it was open to the Magistrate on the materials on record to find out which party was in possession. This revision application is directed against the order of the learned Sessions Judge.

In view of the order of the learned Single Judge the revision application has been placed for hearing before Division Bench,

Mr. Mohanty for the opposite parties raised a preliminary objection regarding maintainability of this revision application relying upon the provisions of Section 397 of the Code of Criminal Procedure. Sub-section (3) of that section provides:

If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

Members of the second party were the applicants before the learned Sessions Judge and this revision has been filed by member of the first party. The embargo imposed by Section 397(3) of the Code is not thus applicable to the present case. The preliminary objection must, therefore, be overruled

Two questions arise for determination:

(i) Whether after the order u/s 146 was passed by the learned Magistrate, a proceeding u/s 145 of the Code could be continued ?

(ii) Whether there was material for the satisfaction of the learned Magistrate to make the order u/s 146(1) of the Code ?

Mr. Ramdas for the petitioners claims that the order u/s 146(1) of the Code did not bring the proceeding u/s 145 to an end. Therefore, in spite of the attachment and appointment of receiver, the learned Magistrate had jurisdiction to continue the inquiry and find which party was in possession on the date of the preliminary order. Sub-section (1) of Section 146 of the Code is in the following terms:

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 ............

The order of the learned Magistrate was clearly one under this provision Yet he indicated that the inquiry u/s 145 of the Code would continue.

Three contingencies have been contemplated in which an order of attachment can be passed:

(i) Where the Magistrate is satisfied that the case is one of emergency; or

(ii) If the Magistrate after inquiry holds that none of the parties was in possession on the date of the preliminary order or within two months preceding it in case of dispossession; or

(iii) If the Magistrate is unable to satisfy himself as to which of the parties was in possession on the appropriate date.

The last two situations would arise only after inquiry is complete. Parliament has equated the first contingency namely after passing of a preliminary order if the Magistrate is satisfied that it is a case of emergency at par with the other two contingencies. No further inquiry is possible in the two other contingencies. Therefore, there is no occasion to contend that when an order is passed on the first of these contingencies, the proceeding u/s 145 of the Code survives and an inquiry as envisaged in that Section is yet to be undertaken. Besides, the language of the provision is clear enough to support the conclusion that the dispute before the criminal court comes to an end and which party is entitled to possession has to be determined by the competent court. Our view is clearly supported by two single Judge decisions of this Court in Criminal Revision No. 428 of 1974 (Radhagobind Panda v. Navinalli Addale Roddi) disposed of on 21st of June, 1976 (Orissa) and Criminal Misc. Case No. 139 of 1976 (Kishorilal v. Rubiya Begum) disposed of on 12th April, 1976 (Orissa). In both these cases, our learned brother B.K. Ray, J., has come to the same conclusion.

The Allahabad High Court in the case of Chandi Prasad and Others Vs. Om Prakash Kanodia and Others, has also taken the same view. The legal position, therefore, is that once an order u/s 146(1) of the Code is passed on being satisfied about the existence of any of the three contingencies, the proceeding u/s 145 terminates. The direction of the learned Magistrate that the proceeding would continue in spite of his order of attachment u/s 146(1) of the Code is, therefore, wrong.

After the preliminary order had been drawn up, the members of the first party filed an affidavit in support of their contention that the members of the second party were threatening to enter upon the disputed property by force. A counter-affidavit was filed by the members of the second party and the matter was heard. The learned Magistrate was satisfied that there was emergency necessitating attachment. The satisfaction of the Magistrate in such a situation should not be lightly interfered with The learned Sessions Judge has not given any cogent reason for coming to a contrary conclusion. We are, therefore, not satisfied that the order of the learned Magistrate attaching the property and appointing a receiver was open to challenge.

It is conceded before Us that a suit for partition between the parties is still pending. Neither party, however, has taken any steps to obtain an order for appointment of receiver or for an order of injunction which could avoid the emergency arising out of apprehension of breach of peace. It is still open to any of the parties to ask for a receiver in the suit and in the event of such an appointment, the learned Magistrate would pass an order in terms of the proviso to Section 146(2) of the Code.

Keeping all the facts in view, we think it appropriate to vacate the order of the learned Sessions judge and sustain the order of the learned Magistrate to the extent of effecting attachment and appointing a receiver. The proceeding u/s 145 of the Code of Criminal Procedure shall, however, not continue.

The revision is allowed.

P.K. Mohanti, J.

I concur.