Soma alias Sahib Kaur vs Gurnam Singh and anr.

S.S. Dawan, J.

This revision arises out or the proceedings under S. 145 of the Code of Criminal Procedure, 1973 (for short the Code). It would appear that Smt. Soma petitioner initiated proceedings under S. 145 of the Code against the opposite party by alleging that she is the widow of Kishna deceased, who was the khewatdar in the land in dispute and he was in possession of specific, khasra numbers and that after his death she became owner of his property. It was further alleged that the opposite party wanted to take forcible possession of the land, therefore. the land should be attached under S. 146 of the Code. On February 8, 1983, the learned SubDivisional Executive Magistrate, Thanesar, passed the usual order under S. 145 of the Code stating that there was apprehension of breach of peace over the land in dispute and consequently exercising his powers under S. 146 of the Code, attached the property in dispute and appointed the NaibTehsildar, Shahbad, as a receiver thereof. Gurnam Singh respondent went up in revision before the Court of Session and the learned Additional Sessions Judge. Kurukshetra, set aside the order of attachment passed by the SubDivisional Executive Magistrate, Thanesar, on the ground that the order dated February 8, 1983. attaching the land in dispute was a composite order and that the trial Magistrate had failed to consider if the present case was one of emergency.

Smt. Soma petitioner aggrieved with the said order, has filed the present revision in this Court. The learned counsel appearing on her behalf has argued that the order of the learned Additional Sessions Judge was illegal and that the same was based on conjectures and surmises without properly appreciating the facts of the case. It is further contended that the observation of the learned Additional Sessions Judge that the trial Magistrate has nowhere mentioned in his order that it was a case of emergency, is factually wrong and that a bare perusal, of the order passed by the Magistrate would show that there was apprehension of imminent breach of peace and therefore, the order of attachment of the land in dispute was passed. On the other hand, the learned counsel for the respondents'' has contended that there was no material before the Magistrate for coming to the conclusion that there was any apprehension. of breach of peace and that the Magistrate could not pass a composite order under S. 146 of the Code.

After hearing the parties'' counsel at length I am of the considered view that there is substance in the contentions raised by the learned counsel for the petitioner. The question whether there was sufficient material for the trial Court to come to the conclusion that there was danger of breach of peace, is not for the revisional Court to determine It is for the Magistrate concerned to come to the conclusion on the material before him whether such a dispute exists. However scanty the material might be, the trial Court is the proper forum for the purpose of determining this fact. I am accordingly of the opinion that this question should not have been allowed to be agitated by the learned Additional Sessions Judge. Moreover, this point now stands concluded by a Supreme Court decision in R.H. Bhutani v. Miss Mani J. Desai & Ors., 1968 CAR (SC) 223 wherein it has been observed in the following terms:

"The satisfaction under subsection (1) is of the Magistrate. The question whether on the materials before him he should initiate proceedings or not is, therefore, in his discretion which, no doubt, has to be exercised in accordance with the well recognised rules of law in that behalf. No hard and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction. The language of the sub section is clear and unambiguous that he can arrive at his satisfaction both from the police report or from other information'' which must include an application by the party dispossessed. The High Court in the exercise of its revisional jurisdiction, would not go into the question of material which has satisfied the Magistrate."

The question is whether the preliminary order passed by the Magistrate was in breach of section 145 (1), that is, in the absence of either of the two conditions precedent. One of the grounds on which the High Court interfered was that the Magistrate failed to record in his preliminary order the reasons for, his satisfaction. The section, no doubt, requires him to record reasons. The Magistrate has expressed his satisfaction on the basis of the facts set out in the application before him and after he has examined the appellant on oath. That means that those facts were prima facie sufficient and were the reasons leading to his satisfaction."

Applying the aforesaid principle. the order of the learned SubDivisional Executive Magistrate, Thanesar, dated February 8, 1983 in the present case and the proceedings consequent thereto. are unassailable.

The question whether the satisfaction of the Magistrate with regard to the existence of a dispute likely to cause breach of peace under section 145 of the Code and the further finding that the case is one of urgency under section 146 of the Code can be validly recorded in the same composite order has already been answered in the affirmative and against the respondent& by a Division Bench of this Court in Nachhattar Singh and Ors. v. Gurinder Singh & others, 1984 (1) Recent Criminal Reports 516, 1983 (1) C.L.R. (P&H) 619, wherein it has been held as under :

"that once the Magistrate is satisfied that the dispute likely to cause a breach of peace exists and there is adequate material before him to find that the case is clearly one of emergency needing urgent redress by way of attachment and the appointment of a Receiver, there is no reason why he should be debarred from proceedings forthwith under section 146 (1) of the Code. Indeed, in a peculiar urgent situation, calling for immediate action, any substantial timelagbeetwixt the primary order under Section 145 (1) of the Code and the attachment and appointment of a Receiver, on the ground that the case is one of emergency, may not only be counterproductive, but might well frustrate the very purpose of the preventive action visualised by these provisions It is true that the satisfaction of the Magistrate that action under Section 145 (1) of the Code is called for, must necessarily precede the finding that the case is of emergent nature requiring attachment of property However, from this. it does not necessarily follow that the satisfaction of the Magistrate under Section 145 (1) of the Code and the finding of emergency cannot be recorded in the said sequence in a composite order.

The satisfaction regarding the existence of a dispute likely to cause a breach of peace under Section 145(1) of the Code and the further finding that the case is one of emergency under Section 146(1) of the Code can on adequate materials, be validly recorded in the same composite order."

During the course of argument it has been urged on behalf of the respondents that the order of attachment under section 146 of the Code could not be passed by the Magistrate in the absence of the respondent''s and in support of this contention, reliance is placed on a Single Bench decision of this Court in Mannu v. Kishan Chand, 1982 (2) C.LR. (P&H) 6. The argument appears to be misconceived. It is nowhere provided in S 146 of the Code that the order of attachment can only be passed by the Magistrate after hearing the opposite party. If the Magistrate feels satisfied that there is a case of emergency, he can very well pass an order of attachment and that if a case is made out by the opposite party for the cancellation of attachment the Magistrate may vacate that order of attachment. It is needless to refer to the said decision because the facts therein are clearly distinguishable and the ratio thereof is not applicable to the facts and circumstances of this case.

The order of attachment was passed by the SubDivisional Executive Magistrate under S. 146(1) of the Code and that order being interlocutory, no revision against the same was maintainable In this view I am fortified by a decision of this Court in Kartar Singh and others v. Smt. Pritam Kaur and another, 1984(1) Recent Criminal Reports 617(DB) : 1981 CRI.L.J. 248 . For this reason also, the impugned order is bad in law.

The result is that revision succeeds and is hereby allowed. The order passed by the learned Additional Sessions Judge, Kurukshetra dated April 5, 1981, is set aside. The parties, through their counsel, are directed to appear before the Sub Divisional Executive Magistrate. Thanesar, on July 10, 1981 and he shall take up the matter in accordance with law expeditiously. The lower Court record be sent immediately.