Mathuralal
Vs
Bhanwarlal and Another
Criminal Appeal No. 10 of 1979
(D. A. Desai, O. Chinnappa Reddy, Syed M. Fazal Ali, A. D. Koshal JJ)
13.09.1979
JUDGMENT
CHINNAPPA REDDY, J. –
1. On the report of the Station House Officer, Manak Chowk, Ratlam, that there was a dispute between Mathuralal and Bhanwarlal concerning a house situated in Kambalpatti Ghas Bazar, Ratlam, which was likely to cause a breach of the peace, the Sub-Divisional Magistrate, Ratlam, passed a preliminary order under Section 145(1) of the Code of Criminal Procedure, 1973, on March 1, 1978. On March 2, 1978, the learned Magistrate attached the subject of dispute under Section 146(1) Criminal Procedure Code considering the case to be one of emergency. Thereafter, when the learned Magistrate wanted to proceed with the enquiry under Section 145 Criminal Procedure Code, an objection was raised by Mathuralal that such an enquiry was incompetent once the subject of the dispute had been attached under Section 146 Criminal Procedure Code. The objection was overruled by the learned Magistrate. Successive Revisions taken before the Session Judge and the High Court having borne no fruit, Mathuralal has filed the present appeal by special leave of this Court. The High Court, we may mention here, thought that the matter was concluded against the appellant by the decision of this Court in Chandu Naik v. Sitaram B. Naik ((1978) 2 SCR 353 : (1978) 1 SCC 210 : 1978 SCC (Cri) 100 : 1978 Cri LJ 356).
2. Shri Mukherjee, learned counsel for the appellant urged that under Section 146 of the Criminal Procedure Code of 1973, an attachment of the subject of dispute could be effected in three situations : (i) if the Magistrate at any time after making the order under Section 145(1) considered the case to be one of emergency, or (ii) if he decided that none of the parties was then in such possession as was referred to in Section 145, or (iii) if he was unable to satisfy himself as to which of them was then in such possession of the subject of dispute. The attachment so effected, regardless of the situation consequent upon which it was effected, was to subsist until a competent court determined the rights of parties with regard to the person entitled to possession. This, he urged, clearly indicated that after an attachment was effected it was the Civil Court and not the Magistrate that was to have further jurisdiction in the matter. He contrasted the provisions of Section 146(1) of the present Code with the provisions of Section 146(1) and the third proviso to Section 145(4) of the Criminal Procedure Code of 1898 as amended by Act 26 of 1955. He drew our attention to the circumstance that the third proviso to Section 145(4) of the old Code empowered the Magistrate, if he considered the case one of emergency, to attach the subject of dispute pending his decision under that section, while Section 146(1) of the previous code empowered the Magistrate to attach the subject of the dispute if the Magistrate was of the opinion that none of the parties was then in possession or if the Magistrate was unable to decide as to which of them was in such possession and thereafter to refer to the Civil Court for decision the question whether any and which of the parties was in possession of the subject of dispute. Therefore, he said, under the previous Code, in the case of attachment because of emergency the Magistrate was himself competent to decide the question of possession and in the other two cases he was to refer the dispute to the Civil Court, whereas, under the present Code, in all the three situations the Magistrate was to leave the matter for adjudication by the Civil Court. Thus, the submission of Shri Mukherjee was that while under the previous Code it was permissible to attach the subject of dispute pending enquiry by the Magistrate as contemplated by Section 145, such attachment pending decision by the Magistrate was not permissible under the provisions of the present Code. According to him so soon as the Magistrate effected an attachment he had nothing further to do except await the decision or the direction of the Civil Court.
3. Though at first blush there appeared to be force in the submissions of Shri Mukherjee, a closer scrutiny of the provisions of Sections 145 and 146 exposes their unsoundness. It may perhaps be desirable, at this stage to extract the provisions of Sections 145 and 146, to the extent that they are relevant, in the Code of 1898 before it was amended in 1955, in the Code of 1898 after it was amended in 1955 and in the Code of 1973 :
#
1898 Code before it 1898 Code after the 1973 Code
was amended in 1955 amendment of 1955
------------------------------------------------------------------------
(a) (b) (c)
------------------------------------------------------------------------
145(1) Whenever a 145(1) Whenever a 145(1) Whenever an
District Magistrate, District Magistrate, Executive Magistrate
Sub-Divisional Sub-Divisional is satisfied from a
Magistrate Magistrate or report of a police
Magistrate of the Magistrate of the officer or upon
first class is first class is other information
satisfied from a satisfied from a that a dispute
police report or police report or likely to cause a
other information other information breach of the peace
that a dispute that a dispute exists concerning
likely to cause a likely to cause a any land or water or
breach of the peace breach of the peace the boundaries
exists concerning exists concerning thereof, within his
any land or water or any land or water or local jurisdiction,
the boundaries the boundaries he
thereof, within the thereof, within the shall make an order
local limits of his local limits of his in writing, stating
jurisdiction, he jurisdiction, he the grounds of his
shall make an order shall make an order being so satisfied,
in writing, stating in writing, stating and requiring the
the grounds of his the grounds of his parties concerned in
being so satisfied, being so satisfied, such dispute to
and requiring the and requiring the attend his Court in
parties concerned in parties concerned in person or by
such dispute to such dispute to pleader, on a
attend his Court in attend his Court in specified date and to
person or by person or by time, and to put in
pleader, within a pleader, within a in written
time to be fixed by time to be fixed by statements of their
such Magistrate, and such Magistrate, and respective claims as
to put in written to put in written respects the fact of
statements of their statements of their actual possession of
respective claims as respective claims as the subject of
respects the fact of respects the fact of dispute.
actual possession of actual possession of
the subject of the subject of
dispute. dispute and further
requiring them to
put in such
documents, or to
adduce, by putting
in affidavits, the
evidence of such
persons, as they
rely upon in support
of such claims.
(2) ....... (2) ....... (2) .........
(3) A copy of the (3) A copy of the (3) A copy of the
order shall be order shall be order shall be
served in manner served in manner served in manner
provided by this provided by this provided by this
Code for the service Code for the service Code for the service
of a summons upon of a summons upon of a summons upon
such person or such person or such person or
persons as the persons as the persons as the
Magistrate may Magistrate may Magistrate may
direct, and at least direct, and at least direct, and at least
one copy shall be one copy shall be one copy shall be
published by being published by being published by being
affixed to some affixed to some affixed to some
conspicuous place at conspicuous place at conspicuous place at
or near the subject or near the subject or near the subject
of dispute. of dispute. of dispute.
(4) The Magistrate (4) The Magistrate (4) The Magistrate
shall then, without shall then, without shall then, without
reference to the reference to the reference to the
merits or the claims merits or the claims merits or the claims
of any of such of any of such of of any of the
parties to a right parties to a right parties to a right
to possess the to possess the to possess the
subject of dispute, subject of dispute, subject of dispute,
peruse the peruse the peruse the
statements so put statements, statements so put
in, hear the documents and hear the
parties, receives affidavits, if any, parties, receives
all such evidence, so put in, hear the all such evidence as
take such further parties and conclude may be produced by
evidence (if any) as the inquiry, as far them, take such
he thinks as may be further evidence, if
necessary, and, if practicable, within any, as he thinks
possible decide a period of two necessary, and, if
whether any and months from the possible decide
which of the parties date of appearance whether any and
was at the date of of the parties which of the parties
the order before before him and, if was at the date of
mentioned in such possible, decide the the order made by
possession of the question whether any him under sub-
said subject : and which of the section (1), in
parties was at the possession of the
date of the order subject of the
before mentioned in dispute :
such possession of
the said subject :
Provided that ....... Provided that ....... Provided that.....
Provided further
that ......
Provided also that Provided also that
if the Magistrate if the Magistrate
considers the case considers the case
one of emergency, one of emergency,
he may at any time he may at any time
attach the subject attach the subject
of dispute, pending of dispute, pending
his decision under his decision under
this section. this section.
(5) Nothing in this (5) Nothing in this (5) Nothing in this
section shall section shall section shall
preclude any party preclude any party preclude any party
so required to so required to so required to
attend, or any other attend, or any other attend, or any other
person interested, person interested, person interested,
from showing that from showing that from showing that
no such dispute as no such dispute as no such dispute as
aforesaid exists or aforesaid exists or aforesaid exists or
had existed; and in had existed; and in had existed; and in
such case the such case the such case the
Magistrate shall Magistrate shall Magistrate shall
cancel his said cancel his said cancel his said
order, and all order, and all order, and all
further proceedings further proceedings further proceedings
thereon shall be thereon shall be thereon shall be
stayed, but subject stayed, but subject stayed, but subject
to such to such to such
cancellation, the cancellation, the cancellation, the
order of the order of the order of the
Magistrate under Magistrate under Magistrate under
sub-section (1) sub-section (1) sub-section (1)
shall be final. shall be final. shall be final.
(6) If the (6) If the (6)(a) If the
Magistrate decides Magistrate decides Magistrate decides
that one of the that one of the that one of the
parties was or parties was or parties was or
should under the should under the should under the
first proviso to second proviso to first proviso to
sub-section (4) be sub-section (4) be sub-section (4) be
treated as being in treated as being in treated as being in
such possession of such possession of such possession of
the said subject, the said subject, the said subject,
he shall issue an he shall issue an he shall issue an
order declaring such order declaring such order declaring such
party to be entitled party to be entitled party to be entitled
to possession to possession to possession
thereof until thereof until thereof until
evicted therefrom in evicted therefrom in evicted therefrom in
due course of law, due course of law, due course of law,
and forbidding all and forbidding all and forbidding all
disturbance of such disturbance of such disturbance of such
possession until possession until possession until
such eviction, and such eviction, and such eviction, and
when he proceeds when he proceeds when he proceeds
under the first under the second under the
proviso to sub- proviso to sub- proviso to sub-
section (4), may section (4), may section (4), may
restore to restore to restore to
possession the party possession the party possession the party
forcibly and forcibly and forcibly and
wrongfully wrongfully wrongfully
dispossessed. dispossessed. dispossessed.
(b) ............
(7) ........... (7) ........... (7) ...........
(8) ........... (8) ........... (8) ...........
(9) ........... (9) ........... (9) ...........
(10) ........... (10) ........... (10) ...........
146(1) If the 146(1) If the 146(1) If the
Magistrate decides Magistrate is of Magistrate at any
that none of the opinion that none of time after making
parties was then in the parties then in the order under sub-
such possession, or such possession, or section (1) of
is unable to satisfy is unable to decide Section 145
himself as to which as to which of them considers the case
of them was then in was then in such to be one of
such possession of possession, of the emergency, or if he
the subject of subject of dispute, decides that none of
dispute, he may he may attach it, the parties was then
attach it until a and draw up a in such possession
competent Court has statement of the as is referred to in
determined the right facts of the case Section 145, or if
of the parties and forward the he is unable to
entitled to record of the satisfy himself as
possession thereof : proceedings to a to which of them was
Civil Court of then in such
competent possession of the
jurisdiction to subject of dispute,
decide the question he may attach the
whether any and subject of dispute,
which of the parties until a competent
was in possession of court has determined
the subject of the right of the
dispute at the date parties thereto with
of the order as regard to the person
explained in sub- entitled to
section (4) of possession thereof :
Section 145; and he
shall direct the
parties to appear
before the Civil
Court on a date to
be fixed by him :
Provided that the Provided that the Provided that such
District Magistrate District Magistrate Magistrate may
or the Magistrate or the Magistrate withdraw the
who has attached the who has attached the attachment at any
subject of dispute subject of dispute time if he is
may withdraw the may withdraw the satisfied that there
attachment at any attachment at any is no longer any
time, if he is time, if he is likelihood of a
satisfied that there satisfied that there breach of the peace
is no longer any is no longer any in regard to the
likelihood of a likelihood of a subject of dispute.
breach of the peace breach of the peace
in regard to the in regard to the
subject of dispute. subject of dispute.
(1A) ..........
(1B) ..........
(1C) ..........
(1D) ..........
(1E) ..........
(2) When the (2) When the (2) When the
Magistrate attaches Magistrate attaches Magistrate attaches
the subject of the subject of the subject of
dispute, he may, if dispute, he may, if dispute, he may, if
he thinks fit and he thinks fit and no receiver in
if no receiver of if no receiver of relation to such
the property, the the property, the subject of dispute, has
subject of dispute, subject of dispute, been appointed by
has been appointed has been appointed any Civil Court,
by any Civil Court by any Civil Court make such
appoint a receiver appoint a receiver arrangement as he
thereof, who, thereof, who, considers proper for
subject to the subject to the looking after the
control of the control of the property or if he
Magistrate, shall Magistrate, shall thinks fit, appoint
have all the powers have all the powers a receiver thereof,
of a receiver of a receiver who shall have,
appointed under the appointed under the subject to the
Code of Civil Code of Civil control of the
Procedure : Procedure : Magistrate, all the
powers of a receiver
appointed under the
Code of Civil
Procedure,
1908 (5 of 1908) :
Provided that, in Provided that, in Provided that in
the event of a the event of a the event of a
receiver of the receiver of the receiver being
property, the property, the subsequently
subject of dispute, subject of dispute, appointed in
being subject of being subsequently relation to the
subsequently by any Civil Court,
appointed by any appointed by any the Magistrate -
Civil Court, Civil Court,
possession shall be possession shall be (a) shall order the
made over to him by made over to him by receiver appointed
the receiver the receiver by possession of the
appointed by the appointed by the subject of dispute
Magistrate, who Magistrate, who to the receiver
shall thereupon be shall thereupon be appointed by the
discharged. discharged. Civil Court and
shall thereafter
discharge the
receiver appointed
by him;
(b) may make such
other incidental or
consequential orders
as may be just.
##
4. Quite obviously, Sections 145 and 146 of Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries. If Section 146 is torn out of its setting and read independently of Section 145, it is capable of being constructed to mean that once an attachment is effected in any of the three situations mentioned therein, the dispute can only be resolved by a competent Court and not by the Magistrate effecting the attachment. But Section 146 cannot be so separated from Section 145. It can only be read in the context of Section 145. Contextual construction must surely prevail over isolationist construction. Otherwise, it may mislead. That is one of the first principles of constructions. Let us therefore look at Section 145 and considers Section 146 in that context. Section 145 contemplates, first, the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists concerning any land or water or their boundaries, and, next, the issuance of an order, known to lawyers practising in the criminal courts as a preliminary order, stating the grounds of his satisfaction and requiring the parties concerned to attend his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. A preliminary order is considered so basic to a proceedings under Section 145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Section 145 and 146. In fact, the first of the situations in which an attachment may be effected under Section 146 of the 1973 of Code has to be "at any time after making the order under sub-section (1) of Section 145" while the other two situations have, necessarily, to be at the final stage of the proceedings initiated by the preliminary order. Now, the preliminary order is required to enjoin the parties not only to appear before the Magistrate on a specified date but also to put in their written statements. Sub-section (3) of Section 145 prescribes the mode of service of the preliminary order on the parties. Sub-section (4) casts a duty on the Magistrate to peruse the written statements of the parties, to receive the evidence adduced by them, to take further evidence if necessary and, if possible, to decide which of the parties was in possession on the date of the preliminary order. If the Magistrate decides that one of the parties was in possession he is to make a final order in the manner provided by sub-section (6). Provision for the two situations where the Magistrate is unable to decide which of the parties was in possession or where he is of the view that neither of them was in possession is made in Section 146 under which he may attach the subject the dispute until the determination of the rights of parties by a competent court. The scheme of Sections 145 and 146 is that the Magistrate, on being satisfied about the existence of a dispute likely to cause a breach of the peace, issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements. Then he proceeds to peruse the statements, to receive and to take evidence and to decide which of the parties was in possession on the date of the preliminary order. On the other hand if he is unable to decide who was in such possession or if he is of the view that none of the parties was in such possession he may say so. If he decides that one of the parties was in possession, he declares the possession of such party. In the other two situations he attaches the property. Thus a proceeding begun with a preliminary order must be followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders. There is no half way house, there is no question of stopping in middle and leaving the parties to go to the Civil Court. Proceeding may however be stopped at any time if one or other of the parties satisfies the Magistrate that there has never been or there is no longer any dispute likely to cause a breach of the peace. If there is no dispute likely to cause a breach of the peace, the foundation for the jurisdiction of the Magistrate appears. The Magistrate then cancels the preliminary order. This is provided by Section 145, sub-section (5). Except for the reason that there is no dispute likely to cause a breach of the peace and as provided by Section 145(5), a proceedings initiated by a preliminary order under Section 145(1) must run its full course. Now, in a case of emergency, a Magistrate may attach the property, at any time after making the preliminary order. This is the first of the situations provided in Section 146(1) in which an attachment may be effected. There is no express stipulation in Section 146 that the jurisdiction of the Magistrate ends with the attachment. Nor is it implied. Far from it. The obligation to proceed with the enquiry as prescribed by Section 145, sub-section (4) is against any such implication. Suppose a Magistrate draws up a preliminary order under Section 145(1) and immediately follows up with an attachment under Section 146(1), the whole exercise of stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements becomes futile if he is to have no further jurisdiction in the matter. And yet he cannot make an order of attachment under Section 146(1) on the ground of emergency without first making a preliminary order in the manner prescribed by Section 145(1). There is no reason why we should adopt a construction which will lead to such inevitable contradictions. We mentioned a little earlier that the only provision for stopping the proceedings and cancelling the preliminary order is to be found in Section 145(5) and it can only be on the ground that there is no longer any dispute likely to cause a breach of the peace. An emergency is the basis of attachment under the first limb of Section 146(1) and if there is an emergency, none can say that there is no dispute likely to cause a breach of the peace.
5. Let us examine if a comparative study of the provisions as they stood before 1955 and after 1955 under the old Code and as they now stand under the 1973 Code lead us to a conclusion other than that indicated in the preceding paragraph. From the comparative table of the provisions, it is seen that there were two principal changes made by the 1955 amendment. The first was that the preliminary order was also to require the parties to put in documents and the affidavits of such persons as they intended to rely upon in support of their claims. The Magistrate was to decide the case on a consideration of the written statements, the documents and the affidavits put in by the parties and after hearing them. The position earlier was that the parties had the right to adduce evidence and the Magistrate could take further evidence if he so desired. The second change was that in the two situations where he was unable to satisfy himself as to which of the parties was in possession or where he decided that none of the parties was in possession, after attaching the property, the Magistrate was himself to refer the dispute to the Civil Court instead of leaving it to the parties to go to the Civil Court. He was to obtain the finding of the Civil Court and thereafter conclude the proceedings under Section 145, Criminal Procedure code in conformity with the decision of the Civil Court. The revised procedure introduced by the 1955 amendment was not found to work satisfactorily and therefore, it was, apparently, thought desirable to revert to the old procedure. The provisions of Section 145 and 146 of the 1973 Code are substantially the same as the corresponding provisions before the 1955 amendment. The only noticeable change is that the second proviso to Section 145 (4) (as it stood before the 1955 amendment) has now been transposed to Section 146 but without the words "pending his decision under this section" and with the words "at any time after making the order under Section 145(1)" superadded. The change, clearly, is in the interest of convenient draftsmanship. All situations in which an attachment may be made are now mentioned together in Section 146. The words "pending his decision under this section" have apparently been omitted an unnecessary since Section 145 provides how the proceeding initiated by a preliminary order must proceed and end and therefore an attachment made 'at any time after making under Section 145(1)' can only continue until the termination of the proceeding. At the termination of the proceeding, if he finds one of the parties was in possession as stipulated, the Magistrate must make an order as provided in Section 145(6) and withdraw the attachment as provided in Section 146(1) since there can be no dispute likely to cause a breach of then peace once an order in terms of Section 145(6) is made.
6. In our view, it is wrong to hold that the Magistrate's jurisdiction ends as soon as an attachment is made on the ground of emergency. A large number of cases decided by several High Courts some taking one view and the others a different view were read to us. We do not consider it necessary to refer to them except to acknowledge that we derived considerable assistance from the judgment of Lahiri, J., in Kshetra Mohan Sarkar v. Paran Chandra Mandal (1978 Cri LJ 936 (Gauhati HC), in arriving at our conclusion. We may also add that the question now at issue did not arise for consideration in Chandu Naik v. Sitaram B. Naik ((1978) 2 SCR 353 : (1978) 1 SCC 210 : 1978 SCC (Cri) 100 : 1978 Cri LJ 356). What was decided there was that a proceeding under Section 145 Criminal Procedure Code did not abate because of Section 8 of the Maharashtra Vacant Land (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975. In the result the appeal is dismissed.