Trinath Mohanty vs Lakhan Napak and Another

P.K. Mohanti, J.—This criminal revision is directed against an order of the learned Sessions Judge of Berhampur revising a final order u/s

Code of Criminal Procedure in exercise of his revisional jurisdiction.

Petitioner and opposite party No. 1 figured as second party and first party respectively in the proceeding u/s 145. Code of Criminal Procedure.

The case for the opposite party No. 1 was that the disputed lands belong to his private deity Ram-Lakshman-Sita and that he is in cultivating

possession of the same as marfatdar of the deity. The Petitioner''s case on the other hand was that he is the bhag tenant ''in respect of the disputed

lands since the time of his father and that during the minority of opposite party No. 1, his mother had filed Title Suit No. 6 of 1965 wherein the

Petitioner was declared to be the bhag tenant and the said decision was confirmed in appeal. It was also contended that in M. J. C. No. 181 of

1972 the mother (If opposite party No. 1 admitted, the Petitioner to be her tenant in respect of the disputed lands and that a proceeding u/s 36-A

of the Orissa Land Reforms Act is pending between the parties.

On the report of the local police the learned Magistrate passed Of) 29-11-1971 a preliminary order u/s 145(1), Code of Criminal Procedure

requiring both the parties to appear before him on 13-12-1977 and to put in written statements of their respective claims. By the same order he

also directed that the disputed lands would be kept under the zima of the Revenue Inspector of Nimakhandi who would take care of the property

and discharge his functions as defined u/s 145(8). Code of Criminal Procedure. After the parties filed their respective written statements the case

was posted to 3-1-1978 for hearing. Thereafter hearing of the case was adjourned from time to time either at the instance of the parties or due to

want of Court''s time. The final order u/s 145, Code of Criminal Procedure was passed on 9-3-1978 declaring possession of the Petitioner over

the disputed lands. Aggrieved by this order, the opposite party No. 1 preferred a criminal revision before the learned Sessions Judge who set aside

the order of the learned Magistrate and directed that the subject-matter of dispute would continue to be under attachment and would remain in

custody of the Revenue Inspector of Nimakhandi till the dispute between the parties was decided by a competent Court of law. According to the

learned Judge, the order of the learned Magistrate keeping the subject-matter of dispute under the zima of the Revenue Inspector and directing him

to discharge his functions u/s 145(8), Code of Criminal Procedure amounted to an order of attachment u/s 146(1). Code of Criminal Procedure

and the Magistrate had no jurisdiction to proceed with the enquiry which had come to an end by such order of attachment. He also found that even

assuming that the learned Magistrate had jurisdiction to proceed with the enquiry, the final order having been made without taking any evidence

and without hearing the parties could not be sustained.

It is urged on behalf of .the Petitioner that the order of the learned Magistrate keeping the subject-matter of dispute under the zima of the

Revenue Inspector was an order u/s 145(8), Code of Criminal Procedure and not an order of attachment u/s 146(1), Code of Criminal

Procedure. It is further urged that the opposite party No. 1 having remained absent on the date fixed for hearing the learned Magistrate had no

other alternative but to pass the final order u/s 145, Code of Criminal Procedure on the strength of the materials available on the record.

The main question for consideration is whether the proceeding u/s 145, Code of Criminal Procedure had come to an end by the order of the

learned Magistrate keeping the subject-matter of dispute under the zima of the Revenue Inspector. As indicated earlier, the learned Magistrate

specifically stated in his order dated 29-11-1977 that the Revenue Inspector, Nimakhandi who was kept in charge of the subject-matter of dispute

would discharge his functions as defined u/s 145(8), Code of Criminal Procedure. There was no order of attachment and there is nothing on the

record to show that a writ of attachment was issued by the learned Magistrate. Sub-section (8) of Section 145, Code of Criminal Procedure

empowers the Magistrate to pass an order for the custody or sale of any crop or other produce of the property in question and'' such an order is

passed with a view to prevent damage or decay of the crop or produce. Such an order does not amount to an attachment of the subject of dispute

and cannot put an end to the proceeding u/s 145, Code of Criminal Procedure.

Even If the order of the learned Magistrate is construed to be one u/s 146(1), Code of Criminal Procedure, I am inclined to take the view that

the proceeding u/s 145, does not come to an end and the Magistrate dues not become functus officio merely on the passing of an order of

attachment u/s 146(1). The proceeding started u/s 145(1) must continue till it is terminated u/s 145(4) by a decision on the question of possession

or u/s 145(5) by cancellation of the preliminary order or u/s 145(6) by passing of an effective order. Section 146(1) provides for attachment of the

subject matter of dispute as an interim measure. On the passing of a final order u/s 145, the emergency attachment would come to an end. The

object of a proceeding u/s 145 is to prevent breach of the peace. There cannot be an automatic cessation of the proceeding merely because the

Magistrate considers the case to be one of emergency. Similar view has been taken by a Division Bench of the Bombay High Court in the case of

Cajitan A. D''Souza and Another Vs. The State of Maharashtra and Others, . Construing the provisions of Sections 145 and 146 Code of

Criminal Procedure their Lordships held as follows:

... However, as pointed out above, Sections 145 and 146 contemplate a composite scheme regarding determination of disputes relating to

possession of immovable property between the parties, and it would appear that the provisions of Section 146 are intended to subserve the object

of a proceeding u/s 145, such object being to determine which party was in possession on the date of the preliminary order and to declare such

party in possession !o be entitled to retain possession until eviction therefrom in due course of law and forbidding all disturbances of such

possession until such eviction. This object would be defeated if merely because during the continuance of the proceedings after preliminary order is

passed, the Magistrate considers the case to be one of emergency and closes the proceedings on that ground. In our view, the intention of the

Legislature in making the said provisions of Section 146 is to vest the Magistrate with necessary powers to preserve the subject of dispute till the

determination of the proceedings u/s 145 by attaching the subject of dispute in case an emergency arises. It seems to us that the provisions of

Section 146 are ancillary to those of Section 145.... On a harmonious construction of the two provision, it appears to us that Section 146 cannot

be construed as an independent section but must be construed as a part d Section 145 and cannot override the provisions of Section 145. Hence,

we are of the view that the Magistrate does not become functus officio merely because of his passing an order of attachment during the pendency

of the proceedings before him, because he considers the case to be one of emergency....

Mrs. A. K. Padhi appearing for the opposite parties cited several decisions laying down the contrary proposition that once an order .is passed

u/s 146(1), the proceeding u/s 145 automatically comes to an end and the Magistrate becomes functus officio. The decisions of this Court which

were brought to my notice are Dandapani Pala and Others Vs. Madan Mohan Pala and Others, , Harekrushna Patra v. Choudhury Ramasankar

Das 45 (1978) C.L.T. 473. Harekrishna Agarwalla v. Siemens (India) Limited 1977 C.L.R. 357 and Gangadhar Sahu v. Ramjilal Majhi 1978

C.L.R. 166.

The decisions in the aforesaid cases, in so far as they have laid down that on the passing of an order of attachment u/s 146(1). Code of Criminal

Procedure the proceeding u/s 145 comes to an end and the Magistrate becomes functus officio are no longer good la w in view of the recent

pronouncement of the Supreme Court in the case of Chandu Naik and Ors. v. Sitaram B. Naik and Anr. 1978 S.C.C. 100. In that case the

Magistrate passed a preliminary order u/s 145(1), Code of Criminal Procedure on 29th July, 1975 asking the parties to appear before him and to

put in their written statements. On the same day he attached the disputed property u/s 146(1). Thereafter written statements were filed by the

parties and the case was heard by the Magistrate from time to time. By order dated 21st January, 1977 the Magistrate held that in view of Section

8 of the Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975, he ceased to have jurisdiction to

proceed with the case. A revisional application perfected against the order of the learned Magistrate was dismissed by the Bombay High Court.

On appeal to the Supreme Court, their Lordships held that the proceeding u/s 145, Code of Criminal Procedure did not abate by virtue of Section

8 of the aforesaid Act and it had to be disposed of by the Magistrate in accordance with the provisions of law contained in Sections 145, and 146

of the Code. Although the subject of dispute had attached u/s 146(1). their Lordships set aside the order of the Magistrate and remanded the

proceeding u/s 145. Code of Criminal Procedure for fresh disposal indicating the manner of disposal as follows:

The Magistrate, in the first instance will try to conclude the proceeding in accordance with the various provisions of Section 145 of the Code. If he

is able to declare the possession of either party on consideration of the evidence adduced or to be adduced before him he would do so. In that

event the other party will be forbidden from creating any disturbance of the possession, (including the deemed possession) in case the application

of the proviso to Sub-section (4) is found necessary) of the party declared in possession. The Magistrate, then, will have to withdraw the

attachment in accordance with the proviso to Sub-Section 0) of Section 146, because, as per his order declaring a party in possession there would

be no longer any likelihood of the breach of the peace with regard to the subject of dispute. The party not found in possession by the Magistrate

will have to seek the redress of his grievance, If any, elsewhere. If, however, the Magistrate decides that none of the parties was in possession of

the disputed property on the date of the order made under Sub-section (1) of Section 145 or if he is unable to satisfy himself as to which of them

was then in possession on the subject of dispute he need not lift the attachment until a competent Court had determined the rights of the parties as

provided for in Section 146(1). In such a situation recourse, if necessary may be taken to Sub-section (2) of Section 146 of the Code either by the

Magistrate or a Civil Court, as the case may be.

In the light of the exposition of law by their Lordships of the Supreme Court, it is no longer possible to hold that there is an automatic cessation

of the proceeding u/s 145, Code of Criminal Procedure on the passing of an order of attachment u/s 146(1), Code of Criminal Procedure.

The next question that arises for consideration is whether the learned Magistrate is justified in passing a final order u/s 145, Code of Criminal

Procedure without recording any evidence and without hearing the parties. On a reference to the records it appears that on 12-1-1978 the second

party filed hazira of three witnesses, but the hearing of the case could not be taken up as the Magistrate was otherwise busy. On 23-1-1978 the

second party also filed hazira of three witnesses and the Advocate for the first party filed a petition requesting the Magistrate to pass appropriate

orders without further enquiry on the ground that an order u/s 146(1) had been passed. The learned Magistrate adjourned the case to 2-2-1978

for hearing of the petition filed by the first party. On that date the Advocate for the second party has present and a petition for time filed by that

Advocate for the first party was rejected. Then the learned Magistrate without giving any opportunity to the parties to lead evidence, posted the

case to 20-2-1978 for orders. On 20-2-1978 orders were not ready and the case was adjourned to 9-3-1978. On the adjourned date the final

order was pronounced. Thus it will be seen that though the second party was ready with witnesses on two occasions, the Magistrate adjourned the

case on the first occasion due to want of time and on the second occasion without assigning any reason as to why the witnesses present were not

examined. Though the case was posted to 2-2-1978 for hearing on a petition filed by the first party, the case was closed and posted to 20-2-1978

for orders. It is, therefore, clear that the final order u/s 145. Code of Criminal Procedure was passed without affording an opportunity to the

parties to lead evidence in support of their respective claims. In this view of the matter, it is necessary to remand the case to the learned Magistrate

for a fresh disposal according to la w after giving an opportunity to the parties to lead evidence in support of their respective claims.

The criminal-revision is allowed and the orders passed by both the Courts below are set aside. The proceeding u/s 145, Code of Criminal

Procedure is remitted to the learned Magistrate for a fresh disposal in accordance with law.

Revision allowed.