Kisun Yadav and Others vs Asharfi Yadav and Others

Bhuvaneshwar Prasad, J.—This application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code) is directed against the order dated 17-2-1986 passed by the learned Sub-divisional Magistrate, Begusarai in Case No. I967M/85 in a proceeding u/s 145 of the Code by which the learned Magistrate started a proceeding u/s 144 of the Code, converted the same u/s 145 of the Code and also passed an order for the plucking of the standing chili crops from the disputed land in presence of the Circle Officer who was appointed as a receiver.

It appears that a proceeding u/s 144 of the Code was started by the learned Magistrate on 8-1-1986. Show-cause notices were issued on the parties. In compliance of this order the parties appeared before the learned Sub-divisional Magistrate and prayed "for time to file the show cause. Before, however, any show cause could be filed, on 30-1-1986 the first party (the present Opposite party No. 2 sic) had filed a petition before the court praying that the chili crop on the land in dispute may be ordered to be plucked by any appropriate officer. On this a report was called for from the Circle Officer.

On 17-2-1986 the matter was heard by the learned Sub-divisional Magistrate who without waiting for the show cause of the parties of without appointing the receiver as prayed for by the first party illegally converted the said proceeding into one u/s 145 of the Code and by the same order simultaneously issued the notice u/s 146 of the Code. It has been contended that the procedure followed by the learned Magistrate was illegal since the proceeding u/s 144 of the Code could not be converted into one u/s 145 of the Code without waiting for the filing of the show cause of the parties. Also the learned Magistrate had passed an illegal order of attachment u/s 1 ''6 of the Code and simultaneously with the order initiating the proceeding u/s 145 of the Code. It is not permissible in law. It has further been contended that the impugned order is not in accordance with the provisions of the Code inasmuch as while initiating the proceeding u/s 145 of the Code the learned Magistrate had not stated the grounds of satisfaction nor she had required the parties concerned in dispute to attend the court and to file their written statements. The learned Sub-divisional Magistrate wrongly assumed the jurisdiction in the garb of emergency to pass an order u/s 146 of the Code. Such a mixed order under the provisions of Sections 144, 145 and 146 of the Code is not permissible in law. On these grounds, it has been contended that the impugned order dated 17-2-1986 passed by the learned Sub-divisional Magistrate be quashed.

Before proceeding to decide the various contentions of the parties, I think that it will be useful to quote in extenso the order passed by the learned Sub-divisional Magistrate on 17-2-1986 which runs as follows:

The record was put up for order today. The present proceeding u/s 144 of the Code of Criminal Procedure was drawn up on receipt of petition of the first party. In the petition the first party has stated that there is grave apprehension of breach of peace at the spot of the disputed land on account of the O.P. and on the disputed land the chili crop is getting completely destroyed as it is ripe and it has to be plucked immediately else it will vote on the spot. The learned Advocates on behalf of both the parties have supported this fact that the chili crop is ripe and fit to be plucked and that it should be plucked by tome Government agency and kept in safe custody till the matter is settled and decided.

Taking the above stated facts into consideration, I am convinced that there is bona fide land dispute between the members of both the parties and there is grave and imminent danger of apprehension of breach of peace at the disputed land. Hence the proceeding is converted to the proceeding u/s 145, Cr. P.C. Also since it is highly emergent that the chili crop be plucked so that the party concerned can be saved from imminent loss. Let notice u/s 146, Cr. P. C. be issued. The chili crop will be plucked in presence of Circle officer who is appointed the receiver and the proceeds from same will be awarded to the party concerned when the case is finally decided. Put up on 20-3-1986.

From the impugned order quoted above, it becomes clear that the learned Magistrate had not; expressely passed any order of attachment of the subject-matter of dispute though he had ordered for the issue of notice u/s 146 of the Code. Also it appears that the Circle Officer was appointed as receiver and he was directed to get the standing chili crop plucked in his presence.

The main criticism of the petitioners against this order is that the learned Subdivisional Magistrate could not have passed the order u/s 146 of the Code simultaneously with the conversion of the proceeding u/s 144 of the Code to one u/s 145 of the Code. It was pointed out that the proceeding u/s 146 of the Code could be started only after the initiation of the proceeding u/s 145 of the Code and after the parties had filed their written statements. Further it was pointed out that no proceeding u/s 146 of the Code could be started without the existence of any one of the three conditions mentioned in Section 146(1) of the Code. Learned Counsel for the opposite party has challenged these contentions and under these circumstances I feel that it will be useful to properly examined the matter. In support of their contention both the parties have relied on some case-laws.

Before, however, taking up for consideration the various decisions relied upon by the parties on this point, I think it will be useful to see the scheme of the Code. So far as Sections 144, 145 and 146 of the Code are concerned. Chapter X of the Code deals with maintenance of public order and tranquility. It has been Sub-divided into various parts. Its part-C contains Section 144 of the Code. It runs as follows:

144.-''Power of issue order in urgent cases of nuisance or apprehended danger.-(1) In cases where, in the opinion of a District Magistrate a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention ox speedy remedy is desirable, such Magistrate may by a written order stating the material facts of the case and served in the manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent obstruction, annoyance or injury to and person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.

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So far as Sections 145 and 146 of the Code are concerned, they have been put under the Division ''D'' which deals with dispute as to immovable property. Section 145 of the Code provides that the procedure where dispute concerning any land o water likely to cause breach of peace is concerned, Section 145(1) of the Code runs as follows:

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 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.

Section 146 of the Code relates to the power of the Magistrate to attach the subject of dispute and to appoint receiver, Section 146(1) of the Code runs as follows:

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 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.

Thus a plain reading of Section 145(1) and Section 146(1) of the Code clearly goes to show that the order u/s 146(1) can only be passed after the Magistrate makes the order u/s 145(1) of the Code. This is not all. Before an order u/s 146(1) of the Code can be passed by the Magistrate he has to satisfy himself that the (1) the case is one of emergency or (2) if he decides that none of the parties was then in such possession as is referred to in Section 145 or (3) if he is enable to satisfy himself as to which of them was then in such possession of the subject of the dispute. Under any of these circumstances, Section 146(1) of the Code empowers the Magistrate to attach the subject-matter of the dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. As noticed above the order u/s 146(1) of the Code can only be passed alter the Magistrate had already made an order u/s 145(1) of the Code. It would, thus, appear that passing of an order u/s 145(1) of the Code is the first condition to be satisfied before any order u/s 146(1) of the Code can be passed. It may also be noticed that in all the proceedings u/s 145(1) of the Code the order of attachment as contemplated u/s 146(1) of the Code cannot be passed. An order Section 146(1) of the Code can only be passed if any of the three conditions mentioned in this section as satisfied. So far as condition Nos. 2 and 3 are concerned naturally they cannot be satisfied unless the Magistrate decides that none of the parties was then in such possession or if he finds himself unable to satisfy himself as to which of them was then in possession. These two conditions can only be satisfied after the Magistrate examines the respective cases of the parties on the basis of the written statements filed by them. So far as the first condition is concerned, obviously, the order u/s 146(1) of the Code can be passed at any time after making an order u/s 145(1) of the Code if the learned Magistrate consider the case to be one of emergency. From the scheme of these sections, it becomes clear that the order u/s 146(1) of the Code on the ground of emergency can be passed by the Magistrate but only after an order u/s 145(1) of the Code has already been passed. The question that now arises for consideration is whether these two orders can be passed simultaneously or not.

It was the contention of the learned Counsel for the petitioners that these two orders cannot be passed simultaneously. It has been submitted that to enable a Magistrate to pass an order u/s 146(1) of the Code a proceeding u/s 145(1) of the Code must be in existence from before. No order Section 146(1) of the Code can be passed in absence of a proceeding u/s 145 of the Code. In particular, learned Counsel for the petitioners has placed reliance on the case of Mahendra Tewari v. Mostt. Lal Pari Devi 1981 BBCJ 570. This is Division Bench decision of this Court. In paragraph 5 of this decision it has observed as follows:

From discussion of the above cases this much is clear that an order of attachment cannot be passed simultaneously in the sense that a Magistrate, while initiating a proceeding u/s 145 of the Code cannot, at the same time also make an order of attachment. An order of attachment has got to be made subsequent to the initiation of the proceedings in the circumstances mentioned in Section 146(1) of the Code. Sufficient support can be derived for this view from the second case of the Supreme Court mentioned above.

Before coming to the above mentioned conclusion the Hon''ble Judges constituting this Bench had placed reliance on the two cases of the Supreme Court namely the case of Chandu Naik and Others Vs. Sitaram B. Naik and Another, and Mathuralal Vs. Bhanwarlal and Another, . It was only after discussing the judgments of in these two cases that the Division. Bench has made the observation as quoted above in paragraph 5 of the judgment.

In this connection, a reference may also be made to the case of Mathuralal Vs. Bhanwarlal and Another, . From this decision it would appear that before the Hon''ble Supreme Court the question that came up for determination was that whether after making an order of attachment u/s 140 of the Code can the Magistrate proceed with u/s 45 of the Code. It was held that Section 146 of the Code cannot be separated from Section 145 of the Code and it can only be read in the context with this Section. It was further held that in case of emergency a Magistrate may attach the property at any time after making the preliminary order u/s 145(1) of the Code. There is no express stipulation in Section 146 that the jurisdiction of the Magistrate ends with the attachment nor is it implied. Far from it. The obligation to proceed with the enquiry as prescribed by Section 145(4) is against any such implication. An emergency is the basis of attachment under the first limb of Section 146(1) of the Code and if then; is an emergency no one can say that there is no dispute which is likely to cause breach of peace.

In the case of Chandu Naik (supra) the nature and scope of Sections 145 and 146 of the Code came up for consideration before the Hon''ble Supreme Court, In this case on a petition filed on behalf of the respondents u/s 145 of the Code a Magistrate passed a preliminary order under this section and attached the disputed property u/s 146 of the Code. In paragraph 7 of this judgment the procedure in accordance with the various provisions of Section 145 of the Code has been indicated. However, from this decision it would appear that the learned Magistrate had passed a simultaneous order u/s 145(1) of the Code and u/s 146 of the Cods and this was not adversely commented upon by the Supreme Court,

Learned counsel for the opposite party has placed reliance on the case of Baijnath Choubey and Ors. v. Dr. Ram Ekbal Choubey and Ors. reported in 1981 P.L .J.R. 317. This is a single Bench decision of this Court, In this case it was held that under the facts and circumstances of the case a composite order of initiation of proceeding u/s 145 and an order of attachment u/s 146 of the Code can be validly passed notwithstanding the omission of the expression ''emergency'' in the Magistrate''s order. In this case reliance has been placed on a number of decisions including the decision in the case of Chandu Naik and Others Vs. Sitaram B. Naik and Another, . Also a reference has been made to the decision of Gaya Singh and Others Vs. Doman Singh, , It appears that before this Full Bench the question for consideration was whether under the provisions of new Code a Magistrate initiating a proceeding u/s 145(1) of the Code could attach the subject-matter of the dispute u/s 146(1) of the Code without hearing the parties. Even in this Full Bench also a reliance was placed on the case of Chandu Naik (supra) and it was observed as follows:

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 u/s 145 to attach the subject-matter in dispute without hearing the other side.

The learned Single Judge after taking into consideration the decision of the Supreme Court in the case of Chandu Naik (supra) has observed as follows:

Thus there is no scope for any argument now that a composite order of initiating the proceeding and of attaching the land, even without hearing the other side is quite legal.

It was, however, pointed out in this connection that the matter for consideration before this Bench or before the Hon''ble Supreme Court in the case of Chandu Naik (supra) was whether the order of attachment u/s 146(1) of the Code can be passed even without hearing the parties or not. The answer to this question was obviously in affirmative in view of the fact that the order u/s 146(1) of the Code can be passed in the case of emergency also and the emergency cannot wait for the appearance of the parties. Learned counsel for the petitioners has submitted that he also accepts the ratio of these decisions. It was, however, his contention that his main grievance against the impugned order is that the order for issue of notice u/s 146 of the Code and for getting the chili crops plucked by the Circle Officer who was appointed as receiver cannot be passed simultaneously with the order u/s 145 of the Code. It has been pointed out that the order u/s 146(1) of the Code can be passed only after an order u/s 145(1) of the Code is passed. It has also been submitted that under the facts and circumstances of this case it does not appear to be a case of emergency.

From perusal of the impugned order, however, it would appear that the learned Magistrate had not passed the order of attachment of the subject-matter of dispute under the provisions of Section 146 of the Code. He had simply passed the order for the issue of notice under this section and not an order of attachment. Thereafter he has proceeded to appoint the Circle Officer as the receiver with a direction that the chili crop will be plucked in his presence. Since in the impugned order there is no order attaching the subject-matter of dispute the discussion made above on the question whether or not a composite order u/s 145(1) of the Code can be passed simultaneously with an order of attachment u/s 146(1) of the Code becomes only of academic interest. However, since these questions were raised by the learned Counsel for the petitioners and were countered by the learned Counsel for the Opposite parties, I have with them in detail.

In the present case, however, as is clear, no order of attachment has been passed u/s 146 of the Code. The question that will now arise for consideration would be whether under given situation any receiver can be appointed with direction to get the Chili crop plucked in his presence. It may be pointed out here that a receiver could be appointed only under the provisions of Section 146 of the Code and that also only after Magistrate attaches the subject-matter of dispute under the provisions of this section as become clear from SectionSection (2) to Section 146. It has been contended on behalf of the petitioners that since in the present case no order of attachment has been passed, on order under the provisions of Sub-section (2) of Section 146 could be passed by the learned Magistrate appointing a receiver directing him to get the chili crop plucked in his presence. Under this circumstance, it becomes clear that the order passed the learned Magistrate appointing a receiver with a direction that he should get the chili crop plucked in his presence is obviously without jurisdiction. Moreover, so far as the question of emergency is concerned the learned Magistrate has not stated how she is satisfied that this is a ease of emergency to warrant an order u/s 146(1) of the Code. On the other hand, she has only ordered for issue of notice u/s 146 of the Code to show cause

From these discussions it becomes clear that the impugned order which is a composite order under Sections 144, 145 and 146 of the Code is not in terms of the law on the subject and, therefore, cannot be sustained in the eyes of law.

In the result, this application is allowed and the impugned order is hereby quashed.