Uchab Chandra Das vs Khirod Ch. Das and Others

A. Misra, J.—This revision has been filed against an interlocutory order of the learned Magistrate. 1st Class. Cut-tack directing attachment of the property in a proceeding u/s 147 Cr. P.C.

At the instance of opp. party Nos. 1 and 2. proceedings u/s 144 Cr. P.C. were initiated against the petitioner and registered as Misc. Case No. 148 of 1971 by the Sub-divisional Officer and Magistrate, 1st Class. Cut-tack. On the application of the 2nd party members, a local inspection was conducted by the Magistrate. 1st Class in the presence of the parties and as the 2nd party claimed a right of user of the land for the purpose of worshipping a deity installed thereon, the proceeding u/s 144 was converted to one u/s 147 Criminal P.C.. the learned Magistrate being satisfied that ''a dispute likely to cause breach of the peace exists between the parties in regard to the right of user of the land'' and parties were called upon to file their respective written statements. On 14-9-1971, on the application of opp. party No. 1, the learned Magistrate passed orders attaching the disputed land. Against this order of attachment, the petitioner preferred a revision before the Additional District Magistrate challenging the jurisdiction of the learned Magistrate to order interim attachment in a proceeding u/s 147 Criminal P.C. The A. D. M. stayed operation of the order of attchment to the limited extent that it should not interfere with the sebapuja of the deity pending disposal of the revision and ultimately by his order dated 22-10-1971 dismissed the revision holding that though Section 147 Criminal P.C. does not contain any provision for an interim order of attachment and Section 146 does not apply to proceedings u/s 147. still by virtue of Section 147 (1), the provisions contained in Section 145 (41 are attracted and a Magistrate has jurisdiction where necessary to attach the subject-matter of dispute.

The only point that arises for consideration and canvassed by the parties is whether a Magistrate acting u/s 147 Cr. P.C. has jurisdiction to pass orders of interim attachment of the subject-matter of dispute pending disposal of the proceeding.

It is not disputed that while Section 145 Cr. P.C. Contains a specific provision in the third proviso to Sub-section (4) to order interim attachment of the subject-matter of dispute pending disposal of the proceeding Section 147 Cr. P.C. does not contain any such provision. Learned Counsel for opp. party No. 1 relies on the last part of Sub-section (1) A of Section 147 Cr. P.C. namely that ''the provisions of Section 145 shall, as far as may be, be applicable in the case of such inquiry,'' According to him. the third proviso to Sub-section (4) of Section 145 permits a Magistrate to attach the subject-matter of dispute pending final decision. Therefore, the power which a Magistrate undoubtedly has under the said proviso of Section 145 (4) can very well be exercised while conducting an inquiry u/s 147. Criminal P.C. It is further argued by him that as both the Sections 145 and 147, Criminal P.C. refer to disputes relating to Immovable property, the only difference being that the dispute dealt with u/s 145 is in respect of possession of the Immovable property, while u/s 147. the dispute is about the user of the said property and the object of these provisions being to prevent breach of the peace, a broad view is to be taken in assuming that while enacting Sub-section (1) A of Section 147 the Legislature intended that as far as possible the Magistrate may exercise all the powers during an inquiry which are available to him u/s 145, Criminal P.C. In support of this contention, he has placed reliance on two decisions, one reported in (1963) All LJ 784 and the other in Mukul Ranjan Chatterjee and Others Vs. Champa Bala Roy and Another, . On the other hand. it is argued by learned Counsel for petitioners that the contention on behalf of opp. party No. 1 if accepted would amount to importing something into Section 147 which the Legislature has not provided. All that Sub-section (1) A of Section 147 provides is application of the procedure provided in Section 145 as far as may be, so far as the procedure for conducting the inquiry is concerned and it cannot be interpreted to mean that the power of attachment specifically given to the Magistrate u/s 145 is also to be implied in a proceeding u/s 147.

In dealing with the respective. contentions, the difference between a proceeding u/s 145 and one u/s 147, Criminal P.C. is to be kept in view. Patently, there is material difference between these two provisions. One deals with disputes relating to land and water, while the other deals with disputes with regard to right of user. In one case, the subject of dispute is tangible Immovable property, while in the other, the subject is an abstract right. In one case the subject of dispute being tangible it is capable of being attached, thereby during the pendency of the proceeding depriving one or other of the parties the actual possession of the same to be re-delivered on disposal of the proceeding. while in the other, the subject being an abstract right, it is not possible to attach and dispossess any of the parties or keep it in custody of the Court to be made over to the party at the close of the proceeding. Thus, there being material difference between the scope as well as the subject of dispute in the two kinds of proceeding, it will be incorrect to equate the proceeding u/s 147 to one u/s 145 or import the powers of a Magistrate in one case, while dealing with a proceeding in the other.

The two decisions relied upon on behalf of Opp. party No. 1 are single Judge decisions and the reasons given for importing a power of attachment u/s 147 are not convincing. On the other hand, the Patna High Court in the decision reported in Rameshwar Rai and Others Vs. Raghu Kahar and Another, while dealing with this question, held that the provisions of third proviso to Section 145 (4) with regard to attachment are not applicable to a proceeding u/s 147, the reason being that in such a proceeding, the land or water not being the subject of dispute, the subject of dispute being only the right of its user, water or the land itself cannot be attached and an abstract right is not capable of attachment. The same view was taken in the decision reported in Ram Lal and Another Vs. Chuni Lal, where it was held:

The scope of Sections 145 and 147 markedly differs as does the subject-matter of the inquiry under the two Sections The provisions in Section 145 empowering a Magistrate to attach the subject of dispute cannot be dissociated from the subject-matter of the inquiry and the question of possession involved in such inquiry. To import the attachment provision of Section 145 into Section 147 would be to introduce something into the latter Section which is really not germane to it. Rights of user of land or water with which Section 147 is concerned are such abstract rights as cannot be actually taken Possession of or put into the actual possession of a person appointed by the Court. Therefore, the second proviso to Sub-section (4) of Section 145 relating to interim attachment cannot b-made applicable in the case of an inquiry u/s 147.

The Rajasthan High Court has also expressed the same view in the decision reported in Rudi and Others Vs. Ram Kumar, . A Division Bench of the Kerala High Court in the decision reported in 1964 Ker L T. 29 (Philip v. Velayudhan) held:

No doubt. Section 147 (1) A provides that the provisions of Section 145 shall, as far as may be. be applicable in. the case of such inquiry. In our opinion, this is not intended to confer a power of attachment of the land in relation to which a right of user is claimed.

This was also followed in a subsequent decision of the Kerala High Court reported in 1967 KLT. 391 (Aham-madkutty v. Kunjavaran), and in both, it was further held that even u/s 561 A. Criminal P.C. the Magistrate is not entitled to exercise such powers for interim attachment in a proceeding u/s 147 Criminal P.C.

For the reasons discussed above I am unable to accept the view expressed in the single Judge decision reported in 1963 Allahabad Law Journal 784 or accept the contention that a power of interim attachment is to be imported into Section 147 Criminal P.C. Agreeing with the view expressed in the decisions reported in Rameshwar Rai and Others Vs. Raghu Kahar and Another, which is also shared by various other High Courts, in my opinion, the Magistrate had no jurisdiction to pass an interim order of attachment in a proceeding u/s 147 Criminal P.C. Therefore, the order of attachment passed by the learned Magistrate is without jurisdiction and liable to be set aside.

In the result, the revision is allowed and the order of interim attachment passed by the learned Magistrate is set; aside.