Mahjidden Khatuan vs Jallaluddin Mian <BR> M. Jallaluddin Mian @ Jallal Mian Vs Musamat Mahajidden Bibi and Others

R.N. Misra, J.—The first revision is directed against the order dated 18th of March, 1977, passed by an Executive Magistrate in a proceeding u/s 145 of the Code of Criminal Procedure (hereinafter referred to as the ''Code''). By the impugned order, the learned Magistrate recalled an interim order of attachment made on 5-2-1977 of the disputed property and dropped the proceeding u/s 145 of the Code though nowhere did he indicate that he was satisfied that there was no apprehension of breach of the peace. The first party in that proceeding has therefore, filed the revision application challenging the impugned order of 18th of March, 1977 and two grounds have been advanced. Firstly, in view of the provisions in Sub-section (1) of Section 146 of the Code, once there is an attachment, the Magistrate becomes functuts officio and the attachment has to subsist until a competent Court determines the rights of parties to the disputed property. Therefore, after the order was made au 5-2-1977 attaching the property, the proceeding should have normally come to an end and the learned Magistrate has no jurisdiction to continue the enquiry. Alternately it is contended that if the jurisdiction was being exercised under the Proviso to Sub-section (1) of Section 146 of the Code, the learned Magistrate was bound to indicate his satisfaction that there was no longer any likelihood of breach of the peace with regard to the subject matter of dispute before he withdrew the attachment.

Criminal Revision No. 238 of 1977 is directed against the final order is a different proceeding u/s 145 of the Cede in regard to the very same property and parties are also common. The local police submitted a report for initiating a proceeding u/s 107 of the Code against the parties and on 10-12-1976, the learned Magistrate directed notice to issue to members of the second party to show cause as to why each of them may not be ordered to execute a bond for rupees one thousand with one local surety for the like amount to keep peace for a period of one year. After cause was shown, on 28th of April, 1977, the learned Magistrate directed that the proceeding u/s 107 of the Code may be converted to one u/s 145 of the Code. It may be noted that both the proceedings u/s 145 of the Code which are being dealt with in this case were before the same Court. No preliminary order u/s 145( 1) of the Code was made when the proceeding was converted. Though the proceeding was initiated after ,the new Code of Criminal Procedure had come into force, the learned Magistrate disposed it of in a summary way without recording evidence. It is contended that in the absence of the preliminary order which alone gives jurisdiction to the Magistrate to investigate into the claim of possession, the proceeding was not maintainable. It has also been contended that there has been no enquiry as provided by law and the learned Magistrate has exercised jurisdiction in a high-handed way forgetting the statute and the procedure indicated therein for dealing with a matter of this type.

The contentions raised in both the cases seem to be entirely appropriate. It has already been decided in this Court that in the even of an order of attachment being made of the disputed property in a proceeding u/s 145 of the Code, the proceeding comes to an end and no further enquiry is contemplated and the attachment subsists until a competent Court decides the rights of parties and the proviso authorises the Magistrate, to recall his order of attachment if at any time he is satisfied that there is no apprehension of breach of the peace. Undoubtedly, in the impugned order in the first case, there is no indication that there was magisterial satisfaction of non-existence of apprehension of breach of the peace. Such satisfaction had been clearly recorded in the order dated 5-2-1977 when the proceeding was initiated. Since jurisdiction to cancel such order is conditioned upon satisfaction of cessation of apprehension of breach of peace, the impugned order was certainly without jurisdiction. Accordingly the order cannot be sustained.

I am surprised to find that no preliminary order was drawn up by the learned Magistrate when he converted the proceeding u/s 107 of the Code of one u/s 145. u/s 145 of the Code, possession has to be determined with reference to the preliminary order, unless it is a case of dispossession, in which event possession sixty days prior to the date of the order becomes material. It is well settled that jurisdiction to investigate into claims of possession depends upon a valid preliminary order and in the absence of a preliminary order, the proceeding becomes non-maintainable.

Under the provisions of Section 145 of the Code of Criminal Procedure of 1973 (Act 2 of 1974), the Magistrate has to receive evidence as may be produced by the parties. In the instant case, opportunity to lead evidence was not given and the learned Magistrate showed undue haste to complete the proceeding. Time had been granted till 27-5-1977 for filing of written statement. Some documents were filed by the parties on 27-5-1977 and some more documents were filed on 30th of May, 1977. The case was never posted for the purpose of receiving evidence and ultimately on 1st of June, 1977, came the final order. It is surprising that a learned Magistrate to dispose of the case in such manner. The impugned order must accordingly be quashed as being opposed to the scheme of the statute and being an instance of gross miscarriage of justice and abuse of statutory procedure.

As it appears, under orders of the learned Magistrate, possession of the property has been delivered to the opposite party No. 1 of Criminal Revision No. 2318 of 1977 in whose favour possession had been found. Now that the final order is quashed, the possession delivered to the opposite party No. 1 must be recovered by the process of the Court. It is appropriate to indicate here that there was no order of attachment in the second proceeding and, therefore, there was thus no occasion for delivering possession of the property. The learned Magistrate seems to have utilised the proceeding to secure possession to the opposite party No. 1 for reasons best known to him. This again is an abuse of the statutory process. The learned Magistrate should have been careful while disposing of the case not to pass orders which would not be in accordance with law.

Keeping the facts of the case in view and the manner in which the matter has proceeded, I think it appropriate to quash both the proceedings. In the event of any existing apprehension of breach of peace, it is open either to the local police or to any of the parties to cause initiation of a fresh proceeding in accordance with law. If Petitioner in Criminal Revision No. 238 of 1977 was in possession and from him possession had been taken, possession should be restored to him within a month from the date of receipt of the order.

Revision allowed.