Smt. Javitri Devi vs Rajpal Singh and Others

V.P. Mathur, J.—This revision is a result of an order passed in the proceedings u/s 145, Code of Criminal Procedure. The proceedings were initiated by Smt. Javitri Devi by an application moved on 31-10-81. A police report was called for and is dated 3-11-81 to the effect that there was an apprehension of breach of peace. Upon this the learned Magistrate passed a perliminary order on 4-11-81. On 21-11-81 Smt. Javitri Devi applied for attachment of the property but the learned Magistrate directed the continuance of the status quo. Then on 6-1-82 the present opposite party No. 1 Rajpal Singh, filed his written statement by way of objection against the proceedings and on 27-1-82 Smt. Javitri Devi filed an additional written statement claiming herself to be in possession. On 31-8-82 the learned Magistrate, passed an order that he was not satisfied as to who was in possession on the spot and hence he directed that the property be attached and kept under attachment till such time as the decision is obtained from a competent Civil Court.

Against this order, criminal revision No. 104 of 1982 was filed by Rajpal Singh and Prem Singh and the learned IVth. Additional Sessions Judge, Bijnor, by his impugned order dated 1-3-83 allowed the revision and declared the revisionists to be entitled to possession of the plots in question. He also forbade all disturbance in their possession until they are evicted in due course of law. Against this order, the present revision has been filed.

The learned Counsel for the revisionist argues that in view of the scheme of Sections 145 and 146 of the Code of Criminal Procedure, the matter is of the satisfaction of the learned Magistrate and he has to decide it. The Sessions Judge has no jurisdiction to decide the question of possession. In support, the case of Mahavir v. State of U.P. 1981 AWC 380 was cited.:

That case was similar to the present one. In that case brother S.J. Hyder, J. considered the provisions of Sections 397, 389, 390, 391 and 401 of the Code of Criminal Procedure and also Section 386 and especially Sub-section (d) thereof and came to the conclusion that the satisfaction of the Magistrate is an essential ingredient of Sections 145 and 146 of the Code of Criminal Procedure and the revisional court is not entitled to make its own assessment of the evidence on record and come to a conclusion as to who was actually in possesion on the date of the preliminary order and two months prior to it.

The learned Counsel for the opposite parties, has however, argued that the satisfaction of the Magistrate is limited only upto the stage of the passing of the preliminary order u/s 145 Code of Criminal Procedure and thereafter the decision has to be made on merits on the basis of evidence and the mere satisfaction of the Magistrate does not come in the picture at all. The present order which is impugned, has been passed u/s 146(1) Code of Criminal Procedure. This section reads as follows:

Power to attach subject of dispute and to appoint Receiver (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 person 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.

(Italicising is by me).

A bare perusal of this provision of the law will show that while passing order u/s 146 Code of Criminal Procedure the necessary ingredient will again be the satisfaction of the Magistrate. In this light of the legal position, the decision in the case of Mahavir (supra) will very well be completely applicable to the facts and circumstances of the present case also. If the learned Sessions Judge was of the view that the order of the learned Magistrate was vitiated on account of illegality, impropriety or incorrectness, his jurisdiction was limited to set it aside and direct the Magistrate to decide the question of possession afresh in the light of the evidence which the learned Magistrate allegedly did not look while passing his order. The Sessions Judge was not justified to make his own assessment of the evidence and come to a different conclusion that the opposite parties and not the revisionist were in possession. That jurisdiction has been specifically conferred upon the Magistrate by the Legislature by the use of the words "satisfaction of the Magistrate in the law itself". The Sessions Judge by taking up that jurisdiction, has committed a manifest error because the jurisdiction did not vest in him.

In the result, the revision succeeds and is allowed. The order passed by Mr. S.M. Goel, IVth Addl. Sessions Judge, Bijnor, on 1-3-83, is set aside and the case is remanded to the Court of the Magistrate having jurisdiction in the matter, to decide afresh, after considering the entire evidence that is on the record, as to which of the parties was in possession at the time of the passing of the preliminary order and within two months prior to it Additional documentary evidence may be allowed to be filed by the parties, but no oral evidence or additional evidence on affidavits will be permitted.

Revision allowed.