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Cajitan A. D'souza Vs. the State (19.08.1976 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 1949 of 1976
Judge
Reported in(1977)79BOMLR175
AppellantCajitan A. D'souza
RespondentThe State
DispositionAppeal dismissed
Excerpt:
.....criminal procedure code, 1973, is to vest the magistrate with necessary powers to preserve the subject of dispute till the determination of the proceedings under section 143 by attaching the subject of dispute in case an emergency arises. the provisions of section 146 are ancillary to those of section 145. on a harmonious construction of the two provisions, it appears that section 146 cannot be construed as an independent section but must be construed as a part of section 145 and cannot override the provisions of section 145.;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. in the event of the magistrate attaching the subject of..........before us that on a true construction of the provisions of sections 145 and 146(1) of the new code, the magistrate's power to decide the dispute relating to possession cannot come to an end merely because the magistrate considered the case to be one of emergency and attached the subject of dispute. they submitted that the provisions of section 146(1) have to be read along with section 143; and having regard to the scheme laid down under the said provisions, the magistrate's order of attachment would be hold to be merely an interim order which must be operative till the final disposal of the proceedings by the magistrate.5. in order to appreciate the rival contentions, it would be necessary to refer to the relevant provisions of the criminal procedure code (crpc), 1898 (act no. v of.....
Judgment:

Shah, J.

1. This petition under Articles 226 and 227 of the Constitution of India raises a question of some importance regarding the scope and ambit of Section 146 of the Code of Criminal Procedure, 1973, hereinafter referred to as 'the new Code.'

2. The facts giving rise to this petition are few and may be stated thus : On June 6, 1975, respondent No. 3 Harchandrai Vanjumal Santani filed an application before the Executive Magistrate, who is respondent No. 2 to this petition, under Section 145 of the new Code against the petitioners. The dispute regarding possession relates to shop premises admeasuring 6' 6' known as 'Lalit Ladies' Own Store' at Shop No. 1, Raut Chawl, Opposite Sitladevi Temple, Mahim. The respondent No. 2 passed, thereon a preliminary order under Section 145(1) as he was satisfied that there was a dispute between the parties likely to cause a broach of the peace concerning the said premises. On June 13, 1975, the respondent No. 3 made another application to attach the property in dispute under Section 146(1) on the ground that the case was one of emergency. This application was granted by respondent No. 2 and he attached the property under Section 146(1) till the final decision of the proceedings under Section 145. On August 19, 1975, the petitioners filed a written statement denying the allegations made against them by respondent No. 3. Thereafter, on February 21, 1976, the petitioners presented an application contending that in view of the order of attachment passed under Section 146(1), the Magistrate had since the passing of the order become functus officio, and he had no jurisdiction to proceed further in the matter. They contended that in the circumstances, the only course open to the parties was to approach a competent Court to get their respective rights determined in respect of the possession of the disputed premises. By his order dated April 17, 1976, the respondent No. 2 rejected the contentions raised by the petitioners and held that the mere passing of the order of attachment under Section 146(1) on the ground of the existence of emergency is no bar to further proceedings under Section 145 being held and he was competent to proceed with the matter. It is this order of the Magistrate which has been challenged by the petitioners in this writ petition.

3. Mr. Ram Singh, the learned advocate appearing for the petitioners, submitted that there is a distinct departure under the now Code from the provisions of the old Code in relation to the proceedings under Section 145, and on a plain reading of the provisions of Section 146(1) of the now Code, the only possible interpretation of the said provisions would be that as soon as the Magistrate passes an order of attachment of the subject of dispute on the ground that the case is one of emergency, his jurisdiction to continue and finally decide the proceedings under Section 145 comes to an end and he becomes functus officio. He submitted that as soon as an order of attachment is passed by the Magistrate, the only course upon to the parties is to approach a competent Court, in other words, a civil Court and get their rights qua the property in dispute adjudged. Neither of the parties to the dispute can further invoke the jurisdiction of the Magistrate under Section 145, nor is the Magistrate competent to continue the proceedings and pass an order under Section 145(6).

4. On the other hand, Mr. Jaysinghani, the learned advocate appearing for respondent No. 3, and Mr. Hudlikar, the learned Assistant Government Pleader, submitted before us that on a true construction of the provisions of Sections 145 and 146(1) of the new Code, the Magistrate's power to decide the dispute relating to possession cannot come to an end merely because the Magistrate considered the case to be one of emergency and attached the subject of dispute. They submitted that the provisions of Section 146(1) have to be read along with Section 143; and having regard to the scheme laid down under the said provisions, the Magistrate's order of attachment would be hold to be merely an interim order which must be operative till the final disposal of the proceedings by the Magistrate.

5. In order to appreciate the rival contentions, it would be necessary to refer to the relevant provisions of the Criminal Procedure Code (CrPC), 1898 (Act No. V of 1898), hereinafter referred to as the old Code, which were in force till the commencing of the new Code. Sections 145 and 146 of the old Code were contained in Chapter XII under the heading 'Disputes Section as to immoveable property'. The provisions relating to 'unlawful assemblies, 'public nuisances' and 'temporary orders in urgent cases of nuisance or apprehended danger' wore contained in Chapters IX, X and XI respectively. These provisions have been recast under the now Code and find a place in Chapter X thereof under the main head 'Maintenance of public order and tranquillity.' These provisions are now contained in four different sub-heads, viz. (A) Unlawful assemblies; (B) Public nuisances; (C) Urgent cases of nuisance or apprehended danger; and (D) Disputes as to immovable property. We are here concerned with the provisions of Sections 145 and 146 of the old Code as well as Sections 145 and 146 of the new Code which deal with the same subject-matter, viz. 'disputes regarding immoveable property.'

The provisions of Section 145 of the new Code, in so far as they are material, are:

(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute....

(4) 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)....

(6) (a) If the Magistrate decides that one of the parties was, or should under the 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; and when he proceeds under the proviso to Sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.

The material change in so far as the question posed before us is concerned is the deletion of the third proviso to Sub-section (4) of Section 145 of the old Code, which provided:

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.

6. Then we may refer to the material provisions of Section 146 of the now Code which deal with the power of the Magistrate to attach subject of dispute and to appoint receiver. We would like to reproduce the provisions of Section 146 of the new Code in extenso as the solo contention advanced before us on behalf of the petitioners is that having regard to the plain wording of Section 146 of the now Code, on the passing of the order of attachment on the ground of existence of emergency, the proceedings under Section 145 abate, in the sense that the Magistrate's power to continue the proceedings and to pass final orders thereon comes to an end. Section 146 of the new Code runs thus:

(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 the 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 likelihood of breach of the peace with regard to the subject of dispute.

(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property 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:

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 as may be just.

It would be clear from the said provisions that the Magistrate would get the power to attach the subject of dispute only in thre3 contingencies : (i) if he considers the case to be one of emergency; (ii) if he decides that none of the parties was then in such possession as is referred, to in Section 145; and (iii) if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute. This power can be exercised by the Magistrate at any time after making the preliminary order under Sub-section (1) of Section 145 and not earlier. As far as the latter two contingencies are concerned, viz., when the Magistrate comes to the conclusion that none of the parties was in possession, or if he is unable to satisfy himself as to which of them was in possession, they would obviously occur at the termination of the proceedings held by the Magistrate under Section 145 and he is unable to pass a final order as contemplated by Sub-section (6) of Section 145 in favour of a party to the dispute which order can be passed only in the event of his coming to the conclusion that one of the parties was or should, under the proviso to Sub-section (4) of Section 145, be treated as being in such possession of the subject-matter of dispute. In such an eventuality, the Magistrate is bound to issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and is also required to pass a further order forbidding all disturbance of such possession until such eviction in due course of law. Even in a case where the Magistrate finds 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) of Section 145, the Magistrate has to restore the subject-matter of the dispute in the possession of the party forcibly and wrongfully dispossessed.

7. As we have pointed out earlier, under the provisions of Section 145 of the old Code, under the third proviso to Sub-section (4) thereof, a power was given to the Magistrate to attach the subject of dispute at any time pending his decision provided he considers the case one of emergency. However, it was specifically stated in the said proviso that ho could exercise his power 'pending his decision' implying thereby that such a power could not be exercised after decision. Even under the old Code, under Sub-section (1) of Section 146, power to attach the subject of dispute was conferred on the Magistrate in the two situations, viz. (i) when he is of the opinion that none of the parties was at the material time in such possession; and (ii) if he is unable to decide a$ to which of them was then in such possession. But thon, there was a further provision which required the Magistrate to refer the matter to the civil Court of competent jurisdiction to decide the question as to any and which of the parties was in possession of the subject of dispute at the date of the order, as explained in Sub-section (4) of Section 145. This power to make such reference has been omitted in the now provisions of Section 140. However, the proviso to Sub-section (1) of Section 145 of the old Code is in substance retained and the provisions thereof are contained in the proviso to Sub-section (1) of Section 146 of the new Code under which the Magistrate has been given a power to withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. In view of the dropping of the provisions relating to the reference to be made by the Magistrate to the civil Court, the result of the now Code would be that it would be for the parties to approach the civil Court in the case of the second and third Contingencies referred to in Section 146(1) of the new Code and get their rights determined, In the event of the decision of the Magistrate stating that in view of his being unable to come to a definite conclusion as to who is in possession, or in view of his holding that none of the parties in dispute are in possession, the civil Court would necessarily decide the question of title apart from the question of possession except in a case where the suit is instituted under the provisions of the Specific Relief Act, 1963. In such a suit based on the provisions of Specific Relief Act, the question of title would not arise and a decree would be passed on the basis of factual possession within six months prior to the date of the suit. It would also be clear that as soon as the suit is filed in the above two Contingencies, the subject of dispute would be under the control of the civil Court and the order of attachment passed by the Magistrate would be subject to any interim or final order that may be passed by the civil Court. For instance, the civil Court might be in a position to issue an order of temporary injunction pending the disposal of the suit against a particular party in the suit, or may oven appoint a receiver. Obviously, in such a situation, the order of attachment passed by the Magistrate would automatically lapse, for, such an order of attachment passed by the Magistrate in a summary proceeding under Section 145 or Section 145 read with Section 146 cannot override the civil Court's jurisdiction over the subject-matter of the suit. It is possible, however, that the attachment order may be continued till the disposal of the suit if no interim order is passed by the civil Court or even after the disposal of the suit, the Court coming to the conclusion that neither the plaintiff nor the defendant had any right to the property.

8. The question posed before us, however, has arisen on account of the dubbing together of all the three Contingencies or events in Section 146(1) of the new Code which were formerly included both in Section 145 and Section 146 of the old Code. The contention advanced before us is that the expression 'until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof' covers all the three Contingencies including a case of emergency. If a literal construction of Section 146(1) is to be adopted, as urged on behalf of the petitioners, it may prima face load us to the conclusion that if at any stage during the proceedings under Section 145, the Magistrate considers the ease to be one of emergency and attaches the subject of dispute, the only remedy of the parties is to got their rights determined in a competent Court or a civil Court, and the powers of the Magistrate to proceed further under Section 143 would automatically come to an end. What has to be decided by us is whether halving regard to the scheme and ambit of Sections 145 and 146 of the now Code, such a literal construction is permissible. In order to arrive at a proper conclusion on the point, the primary consideration in the matter of construction is, what is the intention of the Legislature, Undoubtedly, in the matter of interpretation of a statutory provision, ordinarily, the intention has to be gathered from the language used; but this rule of construction is qualified by several other factors which have to be taken into account while interpreting the statutory provisions. In this connection, we may refer to 'Maxwell on The Interpretation of Statutes', twelfth edn., at page 228, where it is observed:

Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning.

At page 105, there is a further passage which is pertinent and runs as follows:

Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature.

Similarly, in construing an enactment to determine its true scope, it is permissible to have regard to all such factors as can legitimately be taken into account to ascertain the intention of the Legislature such as the history of the Act, the reason which led to its being passed, the mischief which had to be cured as well as the cure as also the other provisions of the statute. See S.C. Prashar v. Vasantsen : [1963]49ITR1(SC) .

9. If Section 146 were to be read apart from Section 145, a literal construction as urged on behalf of the petitioners was possible. On a literal construction of Section 146, the provision in so far as is relevant would road that 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, he may attach the subject of dispute until the competent Court has determined rights of the parties thereto with regard to the parson entitled to the possession thereof. However, as pointed out above, Sections 145 and 146 contemplate a composite scheme regarding determination of disputes relating to possession of immoveable property between the parties, and it would appear that the provisions of Section 146 are intended to subserve the object of a proceeding under Section 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 to 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 close 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 under Section 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, The rule of harmonious construction must prevail over the rule of construing a provision literally where the result of a literal construction would have the effect of rendering some other provisions otiose or nugatory. On a harmonious construction of the two provisions, it appears to us that Section 146 cannot be construed as an independent section but must be construed as a part of Section 145 and cannot override the provisions of Section 145. The consequences of construing the section literally will have to be borne in mind, for, if such a construction is adopted, merely because of a situation of emergency having arisen, the proceedings under Section 145 must be abruptly terminated. On such a construction, the whole scheme of the proceedings under Section 145 would be rendered nugatory and infructuous. We do not think that such an intention can be attributed to the Legislature. 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 the considers the case to be one of emergency. In the view of the matter that we are taking regarding the interpretation of Sub-section (1) of Section 146 read with Section 145, we hold that in the event of the Magistrate attaching the subject of dispute on the ground of emergency at any time after making the preliminary order under Sub-section (1) of Section 145, he would be bound to proceed with the inquiry and pass final orders under Sub-section (6) of Section 145, On his passing such final orders, the emergency attachment would naturally come to an end. In case, however, the Magistrate cannot come to a definite conclusion regarding the particular party being in possession of the property, the emergency attachment would continue until adjudication by the competent Court, i.e. the civil Court, determining the rights of the parties to the dispute relating to the subject-matter of the dispute, In view of the proviso to Sub-section (1) of Section 146, it would, however, be open to the Magistrate to withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of the breach of the peace with regard to the subject of dispute.

10. Having regard to the above discussion, we are of the view that the Magistrate does not become functus officio merely by reason of his passing an order of attachment during the pendency of the proceedings before him on the ground that emergency has arisen.

11. Reliance was placed by Mr. Ram Singh on a decision of the Allahabad High Court in the case of Chandi Prasad v. Om Prakash , which was decided by a learned single Judge. It appears the learned single Judge has taken the view that after the Magistrate has attached the property in any of the three situations referred to in Sub-section (2) of Section 146, the attachment has to be continued until the rights of the parties are determined by a competent Court of civil jurisdiction which can decide the title of the parties and the Magistrate can withdraw the attachment only when at any time he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. This view seems to have been taken on the literal construction of Sub-section (1) of Section 146 and on the ground that the third proviso to Sub-section (4) of Section 146 of the old Code does not find place in Section 145 of the new Code. However, as indicated earlier, having regard to the scheme and ambit of the provisions of Section 145 and Section 146 of the new Code, it is not possible to place such a literal construction on the provisions of Section 146(1). The case of attachment arising out of an emergency would not stand on the same footing as the one under the other two Contingencies referred to in Section 146(1). With respect, we are unable to subscribe to the view taken by the Allahabad High Court. A similar view has been taken by a learned single Judge of the Patna High Court in the case of Md. Muslehuddin v. Md. Salahuddin . There also the learned Judge proceeds on the literal interpretations of the provisions of Section 146(1). We are unable to agree with this view. The learned Judges in the said two oases have based their view on a, purely grammatical construction. However, they did not seam to have considered the object and the scheme of the two relevant provisions.

12. In the result, we reject the contention of the petitioners that the Magistrate has become functus officio and, therefore, cannot continue the proceedings under Section 145 after the attachment of the property.

13. The petition, therefore, fails. Rule discharged.


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