Ramani Mohan Mandal and Others vs Santosh Kumar Mandal and Others

A. Pasayat, J.—Heard learned counsel for the parties. Correctness of a composite order under Secs. 145 and 146 of the Code of Criminal Procedure, 1073 (in short ''the Code'') is the subject-matter of challenge In this revision application.

By the impugned order, the learned Executive Magistrate,Kujang ordered u/s 145 of the Code that members of both parties were restrained from going upon the disputed land and directed them to appear before the Court on 10-12-1987 and file their show cause, It was ordered u/s 146(2) of the Code that the land was attached and the Revenue inspector, Japa was appointed as receiver for the disputed land.

According to the learned counsel for the petitioner such a composite order is not envisaged in law. A conspectus of the provisions contained in Secs. 145 and 146 of the Coda makes it clear that there is nothing in the Code prohibiting the Magistrate to pass composite order from which it can be known that he had exercised jurisdiction u/s 146(1) only after he took up the proceeding and decided to promulgate a preliminary order u/s 145(1) of the Code. Separate recording of the order under both the sections Will be necessarily a matter of form only and not a statutory requirement, instead, if the Magistrate decides and records a preliminary order u/s 145(1) and then attaches the subject of dispute u/s 146(1) at a stretch in the same order there is no statutory impropriety. The two can be segregated. It is even permissible to set aside one while maintaining the other. A similar view was expressed by this Court in 1977 CLR 173 : Theophil Xess and Anr. v. Ghuyan Ekka and Brajamohan Nath Vs. Smt. Kesi Tripathy and Another, .

A question that further requires adjudication is whether necessary ingredients existed for exercise of power u/s 146(1). Resort to this provision cannot be a mechanical act. It presupposes satisfaction as to whether emergency exists which notwithstanding the order u/s 145(1) warrants an order of attachment of subject of dispute. The object of attachment is to keep the property custodia legis so as to prevent the contesting parties from scramble for possession to obtain actual possession of subject of dispute during pendency of the proceeding. In a given case, an order of attachment may deprive the rightful owner of his right of possession of subject of dispute. This power is, therefore, to be exercised with due care and caution and with a judicial approach, as indicated above same is not a mechanical act. Perusal of the order impugned does not show that the learned Magistrate considered these aspects. Therefore, while confirming the preliminary order u/s 145(1) of the Code, the residual order u/s 146(1) of the Code as contained in the impugned order is set aside. The learned Magistrate is free to exercise such jurisdiction u/s 146(1) if situation and circumstances so warrant.

The revision application is accordingly disposed of.