Skip to content


Mohamed Hanif Habib HusaIn Vs. Abdul Hamid Hajmulla Qureshi and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 1838 of 1981
Judge
Reported in1983(1)BomCR190
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145, 145(1), 146 and 482; Indian Penal Code (IPC), 1860 - Sections 341 and 324
AppellantMohamed Hanif Habib Husain
RespondentAbdul Hamid Hajmulla Qureshi and anr.
Appellant AdvocateT.H. Sardar, Adv.;For State: M.D. Gangakhedkar, P.P.
Respondent AdvocateT.H. Sardar, Adv., ;J.P. Mehta and ;R.A. Shaikh, Advs. for respondent No. 1
Excerpt:
.....it may be pointed out that this order is in the interlocutory nature and under section 397 of the code of criminal procedure the revision in regard to interlocutory order is clearly prohibited. 7. as far as the petition under article 227 of the constitution of india is concerned, it is now well settled that the powers under article 227 of the constitution of india are neither appellate powers nor revisional powers. extraordinary remedy to call for any question in the orders passed by the lower courts should normally be resorted to in exceptional circumstances such as miscarriage of justice is done at the hands of the courts below or any violation of law of land is made out to the principal ground of attack in regard to the proceedings in any case. was satisfied that it was not of case a..........mazgaon in case no. 279/n of 1981, which was commenced by proceedings under section 145 of the code of criminal procedure. the said proceedings are pending in the metropolitan magistrate 6th court, mazgaon.2. the first respondent abdul qureshi who was the original applicant before the magistrate, has filed an application on march 5, 1981 under section 145 of the code of criminal procedure. on the next day, i.e. on march 6, 1981 the respondent qureshi also made an application asking the magistrate for taking action under section 146(1) of the code of criminal procedure. the learned magistrate passed preliminary order on march 17, 1981 under section 145(1) of the code and also issued a show cause notice to the petitioner mentioning that the stall in question i.e. stall no. 89 in.....
Judgment:

S.J. Deshpande, J.

1. This application is filed by the original respondent challenging the order of attachment dated September 22, 1981, passed by the Magistrate, 6th Court, Mazgaon in Case No. 279/N of 1981, which was commenced by proceedings under section 145 of the Code of Criminal Procedure. The said proceedings are pending in the Metropolitan Magistrate 6th Court, Mazgaon.

2. The first respondent Abdul Qureshi who was the original applicant before the Magistrate, has filed an application on March 5, 1981 under section 145 of the Code of Criminal Procedure. On the next day, i.e. on March 6, 1981 the respondent Qureshi also made an application asking the Magistrate for taking action under section 146(1) of the Code of Criminal Procedure. The learned Magistrate passed preliminary order on March 17, 1981 under section 145(1) of the Code and also issued a show cause notice to the petitioner mentioning that the stall in question i.e. Stall No. 89 in question should not be sealed under section 146 of the Code of Criminal Procedure.

3. After this order was passed, it appears that no action was taken by the party although it is disclosed from the record that the evidence by way of affidavits was produced before the Magistrate. After a period of six months i.e. on September 12, 1981 the original applicant, the first respondent herein again applied to the Magistrate saying that there is likely to be a breach of peace and tranquillity as the petitioner was threatening the first respondent and illegally enforcing the acts for which certain N.C. complaints were filed by the respondent herein on August 28, 1981, August 31, 1981, September 10, 1981, and September 11, 1981.

4. The learned Magistrate had before him already an application dated March 5, 1981 in which there were certain allegations against the present petitioner that he had filed the false complaint under sections 324 and 114 of the Indian Penal Code against the brother of the first respondent and there was some quarrel over the stall. It is against this background of September 22, 1981 that the learned Magistrate passed an order as under :

'It is hereby ordered that the Stall No. 89 under Municipal Licence No. 2666 situated at Ersking Road, Null Bazar, Bombay 400 003 within the jurisdiction of 'C' Ward, Bombay Municipal Corporation, and described in para 2 of the original application under section 145 of Cri.P.C. bearing C.C. No. 279/N of 1981, shall be sealed through Pydhonie Police Station, under section 146 of the Cri.P.C.'.

The learned Magistrate, therefore, ordered to issue necessary warrant of sealing or attachment in respect of above Stall No. 89 and also directed Pydhonie Police to take such action which is necessary under the Form No. 26 of the Criminal Procedure Code. It is this order of sealing or attachment of the premises which is challenged in this petition by the petitioner who is original respondent and second party in proceedings under section 145 of the Code.

5. At the out set, it may be pointed out that this order is in the interlocutory nature and under section 397 of the Code of Criminal Procedure the revision in regard to interlocutory order is clearly prohibited. But the learned Advocate for the petitioner has contended that he has filed this petition under Article 227 of the Constitution of India and under section 482 of the Code of Criminal Procedure, and, therefore, he has invited this Court to exercise its power either under section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution of India.

6. I may here point out that in view of the provisions of section 482 of the Code, such application would be untenable on the ground that if the Court prohibits a particular course it is not open to invoke inherent powers save by the provisions of section 482 and adjudicate on the very matter which Court does not permit to be decided at the interim stage. Therefore, in my opinion in an application in regard to such interlocutory matters it is impermissible and no recourse can be taken to the provisions of section 482 of the Code of Criminal Procedure. The combining of these two provisions in this petition is embarrassing and I do not think that a combined effect can authorise the High Court to exercise powers under section 482 of the Code.

7. As far as the petition under Article 227 of the Constitution of India is concerned, it is now well settled that the powers under Article 227 of the Constitution of India are neither appellate powers nor revisional powers. That is the power which is vested in its extraordinary jurisdiction by way of supervisory jurisdiction and the orders which are passed by the courts under certain provisions of the Code, cannot normally be the subject matter of decision under Article 227 of the Constitution of India. In the matters of orders which are passed by the courts governed by the provisions of the Code, the provisions of the Code itself should be taken as complete machinery for challenging the orders. Extraordinary remedy to call for any question in the orders passed by the lower courts should normally be resorted to in exceptional circumstances such as miscarriage of justice is done at the hands of the courts below or any violation of law of land is made out to the principal ground of attack in regard to the proceedings in any case. On these grounds, I propose to determine the point which arises for decision in this case.

8. The learned Advocate for the petitioner challenging the order passed by the learned Magistrate has first contended that there was no jurisdiction in the Magistrate to pass such an order of sealing because no emergency exists. It is said that the order of show cause notice was passed by the Magistrate as long back as on 17th March, 1981 and show cause notice was issued on 18th March, 1981 and after lapse of period of six months, it appears to be treated that the emergency which existed has ended or it never existed at all because no action was taken for a period of six months i.e. till the impugned order was passed. It is argued by the learned Advocate for the petitioner that the reference to 'at any time after the order under sub-section (1) of section 145 has connection with emergency, which emergency according to the contention of the learned Advocate exists on the date of the order of issue of notice or on the date of the application when the party first goes to Magisterial Court'. The learned Advocate also relied on the judgment of this Court reported in Vinayakrao Pralhadrao Deshmukh and others v. Dr. Ambadasrao Pralhadrao Deshmukh and others 1981 Bom.C.R. 835. In this case it was held by the learned Judge on facts that no case of emergency was made out and the order of attachment was held to be defective. The learned Advocate invited my attention to the paragraph No. 17 of the judgment and relying on contents of that paragraph it was contended that there is no warrant to infer emergency after the period of six months in this case. The judgment of this Court which was relied on by the learned Advocate for the petitioner specifically refers to this aspect in paragraph 19, stated as follows :

'........ The learned Executive Magistrate at the first instance on reading the report of the P.S.I. was satisfied that it was not of case a emergency and felt necessity to issue the show cause notice and made an endorsement and something occurred thereafter which was enough to persuade him to score out that endorsement and to substitute it by the one which is already referred to above and diagonally an opposite stand was taken, in that in the first instance he thought of attaching 170 acres of land by one stroke of pen, hardly in a moment. In my opinion the facts are so squarely evident causing a grave suspicion in respect of these aspects for one requires hardly any further probe to understand and to apprehend what really might have occurred.'

This observation of our High Court is eloquent to show that in the case of the circumstances before the learned Magistrate there was suspicion in the mind of the High Court about the endorsement made by the learned Magistrate. There was sufficient material on record to hold that the course adopted by the Magistrate in scoring the first endorsement and subsequently ordering something was highly suspicious in the first instance. In this case it is material to note that the learned Magistrate issued show cause notice mentioned as follows :

'.............and to show cause why the premises in dispute, viz., Stall No. 89 in question should not be sealed under section 146(1) Cri.P.C.'.

This notice was issued on May 18, 1981 under section 145(1) of the Code of Criminal Procedure against the petitioner by the learned Magistrate on 6th May, 1981 or 18th May, 1981 and if the parties have as it is said led the evidence by way of affidavits or either oral or documentary evidence and if this particular notice was taken into consideration after six months, I do not see how the issuing of notice can be said to be on par with the endorsement which is referred to in the judgment, which was cited before me. I have no doubt in my mind that the learned Magistrate who decided the question on September 22, 1981 was not deciding anything afresh, but he was deciding the matter which was already in question on the earlier occasion i.e. on May 18, 1981. Therefore, the contention of the learned Advocate for the petitioner in regard to the existence of emergency having expired by lapse of nearly six months is not acceptable to me and I reject the same.

9. It is the respondent's case herein that he had actually taken the stall from the petitioner by way of sale. The claim of the petitioner was disputed by the first respondent denying all facts put forth by the petitioner, disputing all the documents and several receipts filed by the respondent. At this stage I am not concerned with the merits of the controversy but the learned Magistrate has provisionally made a finding in paragraph 6 of his judgment at page 16 of the paper book wherein he has stated :

'................ Therefore, I am of opinion that there is prima facie sufficient documentary evidence to show that the applicant (Qureshi) had got actual possession of the stall in question and he was in possession of this stall upto 11-2-1981. The facts also show that the applicant was dispossessed from the stall in question, forcibly and unlawfully by the respondent (petitioner herein).'

It is true that such a finding at this stage is not called for, but then if the parties, led evidence before him and the learned Magistrate came to the conclusion, I do not think that he committed any such flagrant error as such to call for interference under Article 227 of the Constitution of India. Normally in deciding the matter of emergency such finding is not called for. Because under the provisions of section 146 of the Code what is required is first, the learned Magistrate shall take into consideration the case of emergency, secondly, he finds if name of the party is in possession and thirdly no decision is possible on possession. It is only when these three conditions are satisfied that the power under section 145 of the Code can be invoked by the Magistrate in order to proceed with the matter as provided under that section. In this case, I find from the observations in paragraph 7 of the judgment of the Magistrate that there was eminent danger to the life of the first respondent. According to the contention of the petitioner, the material is a cryptic that it cannot be called material for the evidence in the case. Therefore, the plea which the Magistrate has recorded in regard to the emergency is ill founded, and, therefore, the learned Advocate for the petitioner has stated that there was no emergency at all on account of lack of material and as such the Magistrate was not justified in ordering, to seal the premises. As I have shown above, I would have accepted this argument in exercising of appellate or revisional jurisdiction if so advised. But in this matter, however, I find that there is a reference in paragraph 7 of the judgment of the Magistrate to certain complaint is registered under sections 341 and 324 of the Indian Penal Code. There is also reference to the N.C. complaints and it was sufficient for holding that emergency was existing. In my opinion, in the present circumstances of the case and especially the manner of defence suggested by the petitioner to the case of the first respondent, in this supplies answer to the proof of material. So, with little objection on the portion of the judgment of the lower Court relating to the finding of dispossession alone, I am confirming the order of the learned Magistrate passed by him on September 22, 1981.

10. The learned Advocate for the petitioner has contended that the evidence in this case is complete and the ends of justice will be served if the Magistrate is directed to dispose of the criminal proceedings at the earliest. As the Magistrate has passed preliminary order in this case, which is also valid order, I direct the Magistrate to complete the inquiry and pass final order within a month from today. The petitioner's right to approach the Civil Court if advised is not affected by this decision. Thus, the Rule is discharged with no order as to cost, confirming the order, dated September 22, 1981 passed by the learned Magistrate in Case No. 279/N of 1981.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //