H. Deka, C.J.
1. This rule was obtained by five persons who were convicted under Section 188 of the Indian Penal Code and sentenced to pay a fine of Rs. 100/- each and in default to undergo simple imprisonment for one month. There was an appeal against this conviction and the same was dismissed by the learned Additional Assistant Sessions Judge.
2. The case for the prosecution is that a proceeding under Section 145 Criminal Procedure Code was drawn up at the instance of one Mst. Narua Dasya in the court of the Magistrate at Gauhati and the same was registered as Miscellaneous Case No. 167 of 1955 wherein the accused persons were made 2nd party. The learned Magistrate, however, could not decide as to which party was in possession and by his order dated 6th of August 1956 directed that the parties might go to the civil court to have their rights declared.
It was further directed by the self-same order that the disputed land was to remain under attachment as provided under Section 146 of the Code of Criminal Procedure and the proceeding under Section 145 Criminal Procedure Code was dropped. It was alleged by Mst. Marua Dasya that the accused persons had violated that order and had entered into possession of the land by violating the order of attachment and on that complaint, a complaint case was registered bearing No. 38370 of 1957 of the Magistrate's Court at Gauhati.
Evidence was adduced for the alleged violation of the order and a charge under Section 188, Indian Penal Code against all the accused persons was framed to which they pleaded not guilty. The learned Magistrate, however, by his judgment dated 20th of May, 1959 found all the accused persons guilty under Section 188 of. the Indian Penal Code and convicted and sentenced them as mentioned above. On an appeal, the learned Additional Assistant Sessions Judge found that the case was made out against all the accused persons and their conviction and sentence were maintained.
3. The point taken before us by the learned Counsel for the petitioners is that there was no material on the record on the basis of which a conviction under Section 188 Indian Penal Code could be maintained against all the accused persons, because in his contention the accused persons had not violated any direction duly promulgated by any public servant lawfully empowered to promulgate such order, as is the requirement of the Section, The learned Counsel further suggests that there is no finding to the effect that the alleged disobedience or violation of the order has caused or tended to cause obstruction, annoyance or injury to any persons lawfully employed nor danger to human life, health or safety etc.
4. This case was referred to a Division Bench for adjudicating the point, namely, as to whether any party entering into possession of a plot of land attached under Section 145 Criminal Procedure Code could be made liable under Section 188 of the Indian Penal Code for an alleged offence of violating an order prohibiting them to do certain thing or take certain order in regard to property. On a perusal of the appellate court's judgment it is clear that the learned Additional Assistant Sessions Judge had not tried to ascertain whether on merit the requirements of Section 188 Indian Penal Code were fulfilled.
Therefore, even if we do not enter into the legal contention, namely, whether there was any violation of an order duly passed and promulgated by a competent authority, no annoyance or obstruction etc. was proved. Since, however, the point has been argued before us, namely, as to whether an order of attachment passed under Section 145 Criminal' Procedure Code should be construed to be an order forbidding the other interested parties or third parties from doing an act violation of which might come under Section 188 of the Indian Penal Code, we think we should decide it.
The order of attachment under Section 145 Criminal Procedure Code does not clearly lay down what the rights are of the parties concerned in the dispute except that it provides that the Police or the attaching authority shall keep it under its possession or hold the same till the dispute is decided by a proper adjudication. This order of attachment comes under Section 145(4) of the Code of Criminal Procedure which says:
Provided also that, if the Magistrate considers the case one of emergency, he may at any time, attach the subject of dispute, pending his decision under this section.
In case the matter is decided on merit, Sub-section 6 of that section provides:
If the Magistrate decides that one of the parties was or should under the second proviso to Sub-section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all. disturbance of such possession until such eviction....
Therefore, from a comparison of these two Sub-sections, it is clear that no order forbidding any person to do any act is implied for under Sub-section (4) whereas in Sub-section (6) the Magistrate is competent to pass such an order. Section 146 of the Code of Criminal Procedure - whether under the old Act or under the amended Act - allows continuance of the order of attachment and in this case also an order was passed to the effect that the attachment should continue. There was no specific order passed on any of the parties - either served or promulgated - that none of the parties will enter into possession of the property in dispute or do any act in reference thereto.
Form No. 23 given in Schedule V of the Criminal Procedure Code also provides that the court can, issue notice either to the Police Officer or to the Collector to keep the property in possession or hold the same under attachment until the decree or order of a competent Court determining the rights of the parties, or the claim to possession, shall have been obtained. Therefore, even the order under Section 146 Criminal Procedure Code does not create higher rights in favour of the attaching authority except to hold the property in possession.
5. It has been argued on behalf of the State that the attachment under Section 145 Criminal Procedure Code itself would imply a prohibition on the part of the parties concerned or even an outsider to enter into possession of the property attached. But, in our view that does not seem to be quite correct, because the attachment itself is not obligatory and even if it is done it is only with a view to avoid the breach of the peace. We do not say that the court is not competent to take proper measure for protection against violation of such order either by a proceeding under the Contempt of Courts Act or even by a process for criminal trespass, unless there be a strict order passed forbidding either of the parties either to enter into possession of the property or requiring to take order for the same. I find further support to' this view from the text of Section 140 of the Criminal Procedure Code which says:
Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time, if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute.
Therefore, the main purpose of the attachment order is to prohibit any breach of the peace and not necessarily to restrict possession by either of the parties, unless there be a definite order to that effect. Therefore, in the present context, there being no such order of prohibition passed by the court against the accused persons from entering into possession of the land, even their alleged violation cannot be taken to be an offence coming within Section 188 of the Indian Penal Code. In the circumstances the rule is made absolute, the conviction and sentence passed against the accused persons are set aside and the fine, if paid, should be refunded.
G. Mehrotra, J.
6. I agree.