Shafkat Jahan Ara Begum vs Iqbal Masood & Ors.

N. B. Asthana, J.—On 2451993 S. I. Krishan Nand of P. S. Baradari, Bareilly submitted a report to City Magistrate, Bareilly stating that there is dispute between Iqbal Masood Khan first party and Mehboob Zaman Khan second party regarding possession of the house detailed in the map attached to the report, that there is apprehension of breach of peace, that any serious law and order problem may arise at any time and, therefore, proceedings under Section 145, Cr.P.C. should be drawn between the parties. It is also stated that a separate report under Sections 107/116, Cr.P.C. is being submitted. This report is, dated 2451993. It appears that on 2751993 the present applicant moved an application before the City Magistrate asserting her possession over the ihouse in question and praying that report from C. O. Kotwali be obtained or local enquiry under Section 148, Cr. P.O. may be ordered to be made to avoid future multiplicity of the proceedings. Upon this application the City Magistrate directed the Circle Officer, Kotwali to look into the matter, take necessary action and report. He also enclosed the report, dated 2651993 submitted by C. O. Kotwali to him. The C. O. Kotwali sent his report, dated 3051993 stating that the report for attaching the subjectmatter of dispute under Section 146, Cr.P.C. has already been submitted. No action has been taken upon that report, So far the matter is serious. It may culminate in a serious law and order problem. He, also stated that the parties are giving different applications in order to stall the attachment and that the attachment be made and thereafter the disposal of the applications filed by the different parties be taken up.

Upon the report, dated 2451993 of SubInspector, Baradari the Magistrate passed a preliminary order on 3151993 wit respect to the subjectmatter of dispute. On the same day he passed an order of attachment under Section 146, Cr.P.C. It does not appear that any report was submitted by the Circle Officer or any action was taken upon the application filed by the applicant. She has now come to this court with the prayer that the entire proceedings in the case under Section 145, Cr.P.C. pending in the court of City Magistrate, Bareilly, including the preliminary order and the attachment order be quashed and the property be restored to the applicant, during the pendency of this application.

The applicant has described herself a Shafkat Jahan Ara Begum or wife of Mehboob Zamen Khan. In the affidavit filed before the City Magistrate, Bareilly she has described herself as wife of Mehboob Zaman Khan. In the civil suit filed by her against Mangal Das and others also she has described herself as the wife of Mehboob Zaman Khan. It appears that there is some typing error. Name of the applicant''s husband appears to be Mehboob Zaman Khan, who is opposite party No. 3 in the case and second party in proceedings under Section 145, Cr. P. C. It may also be noted that Iqbal Masood Khan who is first party in the case is defendant No. 7 in Civil Suit No. 294 of 85 filed by the applicant. In that suit she claimed declaration of her being the owner of the house in question and for possession after the ejectment by defendants Nos. 1 to 5 and for recovery of arrears of rent etc.

The application before the City Magistrate was moved by her stating that the tenants and subtenants delivered possession to her of the house in question, that she is in peaceful possession thereof and, therefore, there is no justification for proceedings under Section 145, Cr.P.C. The suit is still pending. Nothing has been brought on record to indicate that in that suit any compromise was filed between the applicant and the defendants No. 1 to 5 of that suit.

In proceedings under Section 145, Cr.P.C. the question of title of the right to hold possession has not to be decided. The only point to be determined is as to whether there is apprehension of breach of peace and which of the parties was in possession on the relevant date. Whether the applicant is the owner of the house in question cannot be the subjectmatter of enquiry in proceedings under Section 145, Cr.P.C.

The first point argued was that an order of attachment can be passed after making the under subsection (1) of Section 145, Cr.P.C. In the instant case there is nothing in the order passed under Section 146(1), Cr.P.C. to indicate that the aforesaid order was passed after the order under Section 145(1), Cr.P C. was passed. This argument is no doubt correct but I do not think that on this ground alone the order of attachment under Section 146(1), Cr.P.C. can be quashed. Both the orders under Sections 145(1) and 146(1), Cr.P.C. could be passed one after the other. It is not necessary that there should be a time gap between the two orders. It may be that the Magistrate while passing the attachment order did not look into Section 146(1), Cr.P.C. but that would not lead to the conclusion that the order passed under Section 146(1), Cr.P.C. should be quashed on this ground alone when there is nothing on the record to indicate that apprehension of breach of peace had ceased to exist. The fact that opposite party No. I Iqbat Masood was made defendant in the Civil Suit filed by the applicant would go long way in showing that actually there is dispute between the parties not only regarding the ownership but also regarding the possession over the subjectmatter of dispute.

According to the allegations made in the application the applicant was given possession of the subjectmatter of dispute on 1661993. The police submitted report on 2551993 for initiating the proceedings under Section 145, Cr.P.C. Proviso to subsection (4) of Section 145 says that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under subsection (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under subsection (1). Even if for the sake of argument it is assumed that possession was delivered, to the applicant on 1651993 it has to be determined to as to who was in possession within two months or before the police submitted its report. Simply because on 1651993 the applicant came into possession it cannot be said that the property is to be released in her favour. It was also argued that the attachment order was not passed in accordance with law and since the effect of attachment order would be to deprive her of possession which she obtained on 1651993, therefore the attachment order may be withdrawn and the proceedings under Section 145, Cr.P.C. should be continued. It do not find any substance in this argument. Whether an attachment order under Section 146 is to be passed depends on the subjective satisfaction of the Magistrate. In the instant case on the basis of the police report and on the basis of the report of the Circle Officer sufficient material existed for the subjective satisfaction of the Magistrate that the case of emergency existed in which the subjectmatter of dispute should be attached. It is no doubt correct that word ''emergency'' has not been used by Magistrate while passing the attachment order but it is clearly stated that on account of dispute regarding possession between the parties there is complete likelihood of breach of peace.

It cannot be said that parallel proceedings under Section 145, Cr.P.C. should not continue because according to the allegation made in the para 34 of the application for interim injunction moved by the applicant in the Civil Suit restraining the defendants from interfering in the peaceful possession of the applicant is still pending. No effective order has been passed in that suit and as such the proceedings under Section 145, Cr.P.C. are competent. It may also be noted that in para 27 of the application it is stated that on 1851993 opposite party No. 1 Iqbal Masood submitted an application at P. S. Baradari alleging that the tenants had vacated the house on 1751993 and he had put in his lock. But the applicant along with her husband and four ''devars'' had broken open the lock and had entered the house. This averment would clearly indicate that the dispute regarding possession of the subjectmatter of dispute still exists. This would also indicate that there is still apprehension of breach of peace regarding the subjectmatter of dispute. Since claims and counterclaims are being made by the parties with respect to the subjectmatter of dispute, it appears to be just and proper that the property should be placed under attachment. It was also contended that upon the application moved by the applicant on 2751993 the Circle Officer, Kotwali was asked to report but he has not submitted any report. This would be a matter for consideration of the Magistrate before the matter is pending. Another application given by the applicant on 461993 for imp leading her as party to the proceedings is also pending. The City Magistrate would also deal with this application in accordance with law before proceeding further in the case,

In view of the discussion made above the application fails and is dismissed at the admission stage.