Radhey Shyam and Others vs Smai Deen and Another

D.N. Jha, J.—The learned Single Judge, Hon''ble Mahavir Singh, J. (as he then was) doubted the correctness of the law laid down by This Court in Syed Ahmad and Others Vs. Rais Ahmed and Others, and since he was of the view that the scheme of the present Act of the Code is such that proceedings u/s 145(1) Code of Criminal Procedure are separate from proceedings u/s 146(1) Code of Criminal Procedure unlike the provisions of the old Code of Criminal Procedure. The following questions, therefore, for determination by a larger Bench have been referred ;--

Whether an order u/s 146(1) Code of Criminal Procedure can be passed exparte without notice to the opposite party either along with the order u/s 145(1) Code of Criminal Procedure or any time afterwards ?

Whether for determining the factum of emergency a Magistrate can rely upon the same materials which led him to pass the preliminary order u/s 145(1) Code of Criminal Procedure ?

Whether the evidence to be recorded by a Magistrate for this purpose has also to be in accordance with Section 273 and 274(1) Code of Criminal Procedure or whether he can call for affidavits for the same ?

Since the learned single Judge has retired we heard this case in order to decide it finally.

In order to answer these questions it is necessary to have brief facts of the case. One Rangilal Pradhan made an application to the Station Incharge of P.S. Hardoi about existence of apprehension of breach of peace between the Petitioners (applicants in the case and opposite parties to this petition) in respect of Khata No. 60 consisting of 47 plots. On the basis of this application the Station Officer made an enquiry and submitted his report to the Sub-Divisional Magistrate concerned that there was apprehension of breach of peace in respect of the plots in dispute. The Sub-Divisional Magistrate feeling satisfied from the report of the Station Officer considering it to be a case of emergency attached the plots in dispute. The applicants had filed a revision feeling aggrieved from the order before the Sessions Judge, Bahraich, who dismissed the same vide his order dated 4-4-1978. The Petitioners feeling aggrieved by this order preferred this criminal miscellaneous application u/s 482 Code of Criminal Procedure.

We have gone through the record with the assistance of the learned Counsel for opposite parties as none appeared for the Petitioners. In this petition we are only confining ourselves to the question of law raised before the learned Single Judge and we are avoiding to record any finding with respect to the questions of fact in order to avoid any prejudice being caused to either of the parties since the matter is pending final decision before the Sub-Divisional Magistrate. The order impugned in the petition has been passed on 1-10-1977 by the Extra Magistrate, II, Bahraich. In this order he has observed ;--

Whether it has been made to appear to me from the application/reports of Police Station Hardoi dated 6-10-1976/26-9-77 that a dispute regarding the land described below is between Radhey Shyam and others on one side and Samaideen and others on (the other) it is likely to cause breach of peace.

The Magistrate thereafter directed the parties to attend the court on 28-10-1977 at 10 A.M. and put in written statement with respect to their respective claims of possession of land specified in the schedule. Lastly, he has observed:

Whereas I consider the case as one of emergency none of the claimants of the land have been able to confirm as to which party is in possession over the land in dispute, I hereby order that the land and crops standing thereon should be attached and given in the supurdgi of an independent person not related to either party.

The learned Single Judge in view of the opening words of Section 146 Code of Criminal Procedure which read as under ;--

If the Magistrate at any time after making the order under Sub-section (1) of Section 145" was of the view that the order u/s 146(1) Code of Criminal Procedure could be passed only after the order u/s 145(1) has been passed. He was further of the view that the basis on which the order u/s 145(1) Code of Code of Criminal Procedure of Criminal Procedure can be passed is indicated in Section 145(1) Code of Criminal Procedure and there is no such indication in Section 146(1) Code of Criminal Procedure. He felt that Section 145(1) Code of Criminal Procedure shows how a Magistrate has to be satisfied after the existence of breach of peace and since it has not been specified in Section 146(1) Code of Criminal Procedure the order can be passed on the same material on the basis of which the order u/s 145(1) Code of Criminal Procedure has been passed. Therefore, the order u/s 146(1) Code of Criminal Procedure can be passed only after the material in accordance with the law has been placed before the Court to show it was a case of emergency. This could only be done by adducing evidence as permitted by the Court. Referring to Section 274(1) Code of Criminal Procedure which provides the mode for recording of the evidence in a proceeding Under Sections 145 to 148 Code of Criminal Procedure the learned Magistrate since had not recorded evidence in accordance with this provision he could not pass the order u/s 146(1) as in his view it was no longer permissible under law.

The point that was canvassed before the learned Single Judge was that the Magistrate could not on one hand attach the plots and on the other require the parties to produce evidence in support of their respective possession over the plots in dispute. In order to appreciate the law relating to Sections 145 and 146 Code of Criminal Procedure it may be observed that these sections of the Code of Code of Criminal Procedure of Criminal Procedure constitute a scheme in itself with respect to the situation where there is likelihood of breach of peace because of dispute concerning any land or water or their boundaries. If Section 146 Code of Code of Criminal Procedure of Criminal Procedure is torn out of its setting and read independently of Section 145 it is capable of being construed to mean that once an attachment is effected in any of the three situations mentioned therein, the dispute can only be resolved by a competent Court and not by the Magistrate effecting the attachment. In our view Section 146 Code of Criminal Procedure cannot be separated from Section 145 Code of Criminal Procedure. They have to be read conjunctively. That in our view is the first principle of construction.

The first of the situations in which an attachment may be effected u/s 146(1) of 1973 Code has to be "at any time after making the order under Sub-section (1) of Section 145" while the other two situations have, necessarily, to be at the final stage of the proceedings initiated by the preliminary order. The preliminary order is required to enjoin the parties not only to appear before the Magistrate on a specified date but also to put in their written statements. Sub-section (3) of Section 145 Code of Criminal Procedure prescribes the mode of service of the preliminary order on the parties. Sub-section (4) casts a duty on the Magistrate to peruse the witten statements of the parties, to receive the evidence adduced by them, to take further evidence if necessary and, if possible, to decide which of the parties was in possession on the date of the preliminary order. If the Magistrate decides that one of the parties was in possession he is to make a final order in the manner provided by Sub-section (6). Provision for the two situations where the Magistrate is unable to decide which of the parties was in possession or where he is of the view that neither of them was in possession is made in Section 146 under which he may attach the subject of dispute until the determination of the rights of parties by a competent court. The scheme of Section 145 and 146 is that the Magistrate on being satisfied about the existence of a dispute likely to cause a breaeh of the peace, issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and sumbit their written statements. Then he proceeds to peruse the statements, to receive and to take evidence and to decide which of the parties was - in possession on the date of the preliminary order. On the other hand, if he is unable to decide who was in such possession he may say so. If he decides that one of the parties was in possession, he declares the possession of such party. In the other two situations he attaches the property. The proceedings, therefore, beginning with a preliminary order has to be followed up by an enquiry and end with the Magistrate deciding it as provided in the three Sub-sections of Section 145 and then making the consequential order. There is in fact no half way house and the proceeding cannot be stopped in the middle and leave the parties to go to the Civil Court. The proceeding may be stopped at any time if either of the parties satisfies the Magistrate that there has never been or there is no longer any dispute likely to cause a breach of peace. In fact once the dispute likely to result in breach of peace disappears the very foundation for the jurisdiction of the Magistrate also disappears. Sub-section (5) of Section 145 Code of Criminal Procedure provides for this contingency. Otherwise the Magistrate initiating the proceeding has to end the proceeding one way or the other with respect to possession. In the case of emergency the Magistrate may attach the property at any time after making the preliminary order. This is the first situation provided in Section 146(1) in which an attachment may be effected. There is no express stipulation in Section 146 that the jurisdiction of the Magistrate ends with the attachment nor can such a view be implied from the language of the section. The obligation to proceed with the enquiry has been provided under Sub-section (4) of Section 145. The Supreme Court in Mathura Lal v. Bhanwarlal 1980 SCC 9 took into consideration the provisions of Sections 145 and 146 Code of Criminal Procedure as it stood before 1955 and after 1955 and also in the new Code of Criminal Procedure of 1973. After comparative assessment the Supreme Court observed as under ;--

It is seen that there were two principal changes made by the 1955 amendment. The first was that the preliminary order was also to require the parties to put in documents and the affidavit of such persons as they intended to rely upon in support of their claims. The Magistrate was to decide the case on a consideration of the written statements, the documents and the affidavit put in by the parties and after hearing them. The position earlier was that the parties had the right to adduce evidence and the Magistrate could take further evidence if he so desired. The second change was that in the two situations where he was unable to satisfy himself as to which of the parties was in possession or where he decided that none of the parties was in possession after attaching the property the Magistrate was himself to refer the dispute to the Civil Court instead of leaving it to the parties to go to the Civil Court. He was to obtain the finding of the Civil Court and thereafter conclude the proceeding u/s 145 Code of Criminal Procedure in conformity with the decision of the Civil Court. The revised procedure introduced by 1955 amendment was not found to work satisfactorily and, therefore, it was apparently, thought desirable to revert to the old procedure. The provisions of Sections 145 and 146 of the 1973 Code are substantially the same as the corresponding provisions before the 1955 amendment. The only noticeable change is that the second proviso to Section 145(4) (as it stood before the 1955 amendment) has now been transposed to Section 146 but without the words "pending his decision under this section" and with the words "at any time after making the order u/s 145(1) superadded.

It would thus be clear that all situations under which attachment may be made are now mentioned together in Section 146. Section 145 Code of Criminal Procedure in fact provides how a proceeding has to be initiated by a preliminary order and how a Magistrate must proceed and end the proceeding initiated by him. At the termination of the proceeding if he finds that one of the parties was in possession as stipulated the Magistrate must make an order as provided in Section 145(6) and withdraw the attachment as provided in section since there can be no dispute likely to cause breach of peace once the order in terms of Section 145(6) is made. In our view, therefore, now there remains no controversy so far as the approach to be made by the Magistrate in drawing proceeding u/s 145 Code of Criminal Procedure with Section 146 Code of Criminal Procedure are concerned.

It may further be observed that on the basis of a police report if the Magistrate once passes of preliminary order setting out the reasons for holding that a breach of peace exists, it is not necessary that the breach of peace should continue at every stage of the proceeding. The proceeding has to be carried to its logical end culminating in the final order u/s 145(6) Code of Criminal Procedure unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of Section 145(5). It is, therefore, manifest that a finding of existence of breach of peace is not necessary at the time when a final order is passed though it may be proper for the Magistrate to give such a finding at that time also. In the instant case it does not appear that any of the parties asserted that no dispute between them existed and there was no apprehension of breach of peace. Thus, there was no question of the dispute having ended so as to lead to the cancellation of the order u/s 145(5) Code of Criminal Procedure. It may further be observed that the jurisdiction of the Magistrate does not end as soon as attachment is made on the ground of emergency u/s 146(1) Code of Criminal Procedure. There is no such express stipulation in Section 146. If there is an emergency which is the basis of attachment u/s 146(1) it cannot be said that there is no dispute likely to cause the breach of peace. In the instant case, therefore, merely because an attachment order was made by the Magistrate presumably u/s 146(1) Code of Criminal Procedure the proceedings had not come to an end. The Magistrate has yet to take evidence and dispose of the dispute in accordance with Sub-section (4) and decide the case u/s 145(5) or Section 146(1). The order impugned in the petition shows that the Magistrate has not yet reached the stage of Sub-section (4) of Section 145. We hope that when the Magistrate proceeds to take evidence he will receive all such evidence as is adduced by the parties and shall follow the mode by taking evidence as prescribed by Section 274 Code of Criminal Procedure.

It appears that the Supreme Court decision in Matfmralal v. Bhanwarlal (supra) was not brought to the notice of the learned Single Judge. However, in view of the aforesaid discussion the question referred to this Bench are answered as under:

So far as question No. 1 is concerned the answer is that an order of attachment u/s 146(1) can be passed at any stage after an order u/s 145(1) Code of Criminal Procedure has been passed.

Questions Nos. 2 and 3 are answered in the affirmative.

The petition preferred u/s 482 Code of Criminal Procedure is devoid of merit and is accordingly dismissed.