Sukhveer Sharma vs State of Uttaranchal and Others

Rajesh Tandon, J.—Heard counsel for both the parties.

Since both the applications have been filed against the order dated 11-10-2005 by which the property has been attached by the City Magistrate and further the receiver disposed them without following the procedure of law, both are being decided together.

By the present application No. 1009 of 2006 filed u/s 482 of the Code of Criminal Procedure, the Applicant has prayed for quashing the order dated 23rd November, 2006 passed by the revisional Court as well as order dated 30-09-2006 passed by the City Magistrate, Haridwar as well as order dated 11-10-2005 by which the property has been attached by the City Magistrate and further the receiver dispossessed them without following the procedure of law.

By the application No. 896 of 2006, the Applicant Virendra Kumar has sought the following relief:

It is, therefore, Most respectfully prayed that this Hon''ble Court may be pleased to allow this application and the proceedings of Case No. 06 of 2004 u/s 145 Code of Criminal Procedure State v. Kailash Charan and Ors. and impugned order dated 11-10-2006 passed by City Magistrate Haridwar thereon u/s 146(1) Code of Criminal Procedure and order dated 30-10-2006 passed by Additional District and Sessions Judge IInd F.T.C. Haridwarin Criminal Revision No. 102 of 2006 Virendra Kumar v. Kailash Charan and Ors. may kindly be quashed.

According to Sukhvir Sharma, he is a tenant of the premises and application u/s 145 of the Code of Criminal Procedure was filed by one Kailash Charan without disclosing that Sukhveer Sharma is a tenant. When Sukhvir Sharma came to know that some proceedings are going on before the City Magistrate, he moved an application for impleadment. The application for impleadment was rejected by the City Magistrate, Haridwar on 29-09-2006 and was directed to be listed for orders on 11-10-2006 u/s 146 of the Code of Criminal Procedure.

On 11-10-2006, the order was passed to the following effect:

: ? ? ? ? ? ? ? ? ? ? ? ? ? : ? ? ? ? ? ? ? ? ? ? ? ? 3 16 ? ? ? ? ? ? ? ? ? ? ? ? ? ? | ? ? ? ? ? ? ? ?, ? ? ? ? ? , ? 146 (1) . . . . ? ? ? ? ? - ? , ? ? | ? ? ? ? 26 - 10 - 2006 ? |

Thereafter, a revision was preferred being Revision No. 402 of 2006 Sukhbir Sharma v. Kailash Charan and Ors. The revision was also rejected vide order dated 23-11-2006 passed by the District and Sessions Judge, Haridwar. Hence the present application has been filed u/s 482 of the Code of Criminal Procedure.

Similarly according to Virendra Kumar, he is continuing to be in possession of his own rights of the property and during the proceedings u/s 146(4), he has been dispossessed.

A perusal of the order dated 11-10-2006 shows that the property has already been attached and is in the Supurdgiof Police Station Kankhal, District Haridwar being receiver of the property.

On 8th December, 2006,1 have passed the order directing the SSP to appear in person. He appeared on 18th December, 2006 and has stated that on the directions of the City Magistrate he has taken the possession from the tenants.

As will appear from the array of the parties, Respondents No. 2 and 3 have been shown to be represented through their Attorney Holder Mahesh Kumar Nakli Ram. However, the notices have already been sent by the office concerned.

In application No. 1009 of 2006, affidavit has been filed by Sri Raj Kumar Sharma with regard to the personal service and has stated that on 19th December, 2006 Sri Raj Kumar Sharma son of Sri Sukhbir Sharma tried to serve the power of attorney holder, but he has refused on the ground that the Respondents No. 2,3 and 4 are out of station and have gone to Bombay.

However, in the Petition No. 896 of 2006 Sri Alok Singh, Sr. Advocate, is already appearing as a counsel on behalf of the same parties.

I have perused the oraer passed by the City Magistrate, Haridwar passed u/s 145 of the Code of Criminal Procedure as well as the order passed u/s 146 of the Code of Criminal Procedure. Section 146 of the Code of Criminal Procedure deals with the attachment of the property. Section 145 of the Code of Criminal Procedure provides that the Magistrate concerned shall decide, who was in possession by virtue of proviso of Sub Section (4) of Section 145 of the Code of Criminal Procedure. Sub-section (4) of Section 145 of the Code of Criminal Procedure provides as under:

The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and if possible, decide whether any and which of the parties was, at the date of the order made by him under Sub-section (1), in possession of the subject of dispute:

Provided 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 Sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under Sub-section (1).

A perusal of the order passed u/s 146 of the Code of Criminal Procedure shows that the property has been attached and a receiver has been appointed who has further been directed to take possession in proceedings u/s 146(1) of the Code of Criminal Procedure. Section 146 provides as under:

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 tne 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 likehood of breach of the peace with regard to the subject of dispute.

(2) When the Magistrate attaches the subject of dispute, he may, if nc receiver in relation to such subject of dispute has been appointed by any Civil Court or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908):

Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate-

(a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him;

(b) May make such other incidental or consequential orders may be just.

Section 146 of the Code of Criminal Procedure only provides the power to appoint receiver. There is no such power to take possession from the person in whose possession the property stands.

Both the Counsels appearing on behalf of the for the Applicants (sic) have submitted that the City Magistrate has no jurisdiction to direct the receiver to take possession of the property and the said order is without jurisdiction.

Considered the scope of Section 146 of the Code of Criminal Procedure. Section 146 of the Code of Criminal Procedure safeguards the interest of the parties till the dispute is decided. Neither it confers upon the authority concerned to dispossess any person nor to put any person who was not in possession on the date of the passing of the preliminary order.

In view of the aforesaid observation, the order dated 11-10-2005 passed by the City Magistrate Haridwar in Case No. 6 of 2006 u/s 146(1) Code of Criminal Procedure is quashed so far as it relates to a direction to the receiver to take the possession of the property.

Liberty is given to the City Magistrate to pass fresh order in the light of the observations made above and also taking into consideration the provisions of Section 146(1) of the Code of Criminal Procedure.

Subject to above, both the applications filed u/s 146 of the Code of Criminal Procedure are disposed of.