Kashinath Sahu vs Dandasi Khatai and Others

B.K. Ray, J.—The member of the 1st party in a proceeding u/s 145, Code of Criminal Procedure has challenged the order of the learned Magistrate dated 9-12-1975 in which the subject-matter of the dispute has been kept under attachment and parties have been referred to civil Court.

The short facts giving rise to the present application may briefly be stated thus: On 24-8-1974 the Sub-Divisional Magistrate, Chatrapur passed a preliminary order in respect of the proceeding u/s 145, Code of Criminal Procedure referred to above which runs thus:

Perused the non-F.I.R. No. 42/74 of Pursothampur P.S. wherein the S.I. Pursothampur P.S. prays for action u/s 145. Code of Criminal Procedure against both the parties as there is likely to occasion breach of peace.

Whereas from the P.R. I am satisfied that there exists dispute regarding the possession of the lands scheduled below between Kasinath Sahu hereinafter called the member of the 1st party and Dandasi Khatai, (2) Kasinath Khatai and (3) Biswanath Khatai hereinafter called the members of the 2nd party and the said dispute is likely to occasion breach of peace and it is therefore ordered u/s 145, Code of Criminal Procedure prohibiting both the parties from entering into the lands tin the proceeding is finally disposed of.

The land in question is attached and the Revenue Supervisor K.S. Nagar is appointed as receiver to look after the said lands until further orders. He is directed to put the lands into public auction for the current year in the presence of both the parties after due publication of the notice as required ''under the Rules. The bid sheet should be furnished to this Court before the date of posting.

Both the parties to appear before this Court on 24-9-1974 at 10.00 a.m. and they should file their written statements and produce their evidence in respect of their claim and possession over the said lands.

The aforesaid order clearly indicates that the learned S.D.M. at the time of passing the same did not refer to the new provisions contained in Sections 145 and 146, Code of Criminal Procedure (new). There is no provision u/s 145, Code of Criminal Procedure (new) for prohibiting the disputing parties from entering upon the disputed land or for attaching the disputed land keeping the same in charge of receiver. The provision for attachment of the disputed land and for appointment of a receiver in respect of the same is only there in Section 146, Code of Criminal Procedure which says that if the Magistrate at any time after making the order under Sub-section (1) of Section 145, Code of Criminal Procedure considers the case to be one of emergency he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto. In view of this provision, it must be held that the learned S.D.M. could not have passed an order of attachment and could not have appointed a receiver in respect of the disputed land while exercising powers u/s 145(1), Criminal Procedure Code. The aforesaid order must therefore be held to be one u/s 145(1) as wen as one u/s 146(1), Code of Criminal Procedure (new). That being so, the only course left open to the Court below was not to proceed further in the proceeding, but to await the final decision of the competent Court keeping the land under attachment. This was not done. In spite of the above order the case was transferred to another Magistrate who proceeded with the case as if the same was u/s 145, Criminal Procedure Code. The parties to the dispute also did not bring it to the notice of the learned Magistrate that an order of attachment having been passed u/s 146(1), Code of Criminal Procedure no further proceedings were to be taken in the case. As a result of this, both parties filed their respective written statements and affidavits in support of their cases. It was only at the time of hearing arguments the opp. party raised the point that in view of an order u/s 146(1), Code of Criminal Procedure having been passed, the question of possession should not be decided and the matter should be left for the decision of a competent Court. This contention of the opp. party was accepted by the impugned order. It is against this order the present revision has been filed.

Mr. D.P. Mohapatra, learned Counsel for the Petitioner, contends that the order dated 24-8-1974 when the proceeding u/s 145, Code of Criminal Procedure was initiated by the learned S.D.M. not having shown that it was both under Sections 145(1) and 146, the learned Magistrate was not justified in treating the order as one u/s 146 and in refusing to decide the question of possession in respect of the disputed land. According to Mr. Mohapatra, law enjoins that a Magistrate after passing an order u/s 145(1), Code of Criminal Procedure on being satisfied on further materials that the case before him is one of grave emergency may attach the subject-matter of dispute in exercise of powers conferred on him u/s 146(1), Criminal Procedure Code. So, it is urged that there being nothing in the order dated 24.8-1974 to show that the learned S.D.M. consciously exercised the power vested in him u/s 146(1), Criminal Procedure Code, the said order must be deemed to be one u/s 145(1), Criminal Procedure Code. There is no dispute that on the very same police report on which a Magistrate passed an order u/s 145(1) he can also pass an order u/s 146, Code of Criminal Procedure attaching the subject-matter of dispute by coming to a conclusion that the case is one of grave emergency. Section 146, Code of Criminal Procedure does not categorically provide that the Magistrate before passing an order u/s 146(1), Code of Criminal Procedure must record reasons. Therefore, even though the order dated 24-8-1974 does not specifically mention that it is both under Sections 145(1) and 146, Code of Criminal Procedure a reading of the same goes to show that the learned S.D.M. after initiating the proceeding u/s 145(1), Code of Criminal Procedure thought it a case of grave emergency, and therefore, attached the subject-matter of dispute and appointed a receiver in respect of the same. In my view, therefore, the said order is not only one u/s 145(1), but also u/s 146, Criminal Procedure Code. That being the position; the only course left open to I the Court below was to keep the subject-matter of dispute under attachment and to refer the parties to a competent Court for decision. In the present case, however, it appears that in spite of an order under section'' 146, Code of Criminal Procedure having been passed by the learned S.D.M. the proceeding continued in the Court below as if it was one u/s 145, Criminal Procedure Code. Merely because the proceeding continued and the parties filed their respective written statements and affidavits of their witnesses, the order dated 24-8-1974 does not cease to be an order u/s 146, Criminal Procedure Code. Therefore, when it was brought to the notice of the learned Magistrate that the initial order was one u/s 146, Code of Criminal Procedure he was fully justified in refusing to proceed with the case any further and directing the parties to approach the competent Court for decision.

For the reasons given above, I do not find any merit in this revision which is accordingly dismissed.