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Shridhar Sadashiv Katdare Vs. P.K. Antia (Dr.) and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Property
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 826 of 1982
Judge
Reported in1983(1)BomCR5
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145(1), 146(1) and 482
AppellantShridhar Sadashiv Katdare
RespondentP.K. Antia (Dr.) and anr.
Appellant AdvocateM.B. Chitre and P.V. Patankar, Advs.;M.D. Gangakhedkar, P.P.
Respondent AdvocateM.H. Ponda, Adv. for respondent No. 1
Excerpt:
.....the code on 17th of december, 1980. the preliminary order under section 145(1) was passed by the learned magistrate on 25th of february, 1981 and this order has been subsequently confirmed by this court. apprehension of a breach of the peace is the foundation for an order to be passed under section 145(1). conditions which must be satisfied before an order under section 146(1) is passed are, however, totally different. it is not possible for me to accept this submission because in the first place the magistrate must be satisfied that there is a case of emergency. i do not think it is necessary to dwell on this point any further because on the facts of this case i am satisfied that there is no emergency of any kind inviting an order under section 146(1). 8. mr. chitre, however, in..........the code on 17th of december, 1980. the preliminary order under section 145(1) was passed by the learned magistrate on 25th of february, 1981 and this order has been subsequently confirmed by this court.4. it is on 7th of august, 1981 that the application which has led to the present petition was filed under section 146 of the code praying therein that the disputed property should be attached by an order of the court. the learned magistrate, by his judgment and order dated 3rd of june, 1982, dismissed the application by holding that the conditions on the satisfaction of which an order under section 146(1) could be passed did not exist in this case. it is this order that is challenged in this petition.5. mr. chite, the learned advocate appearing in support of the petition, his contended.....
Judgment:

R.A. Jahagirdar, J.

1. This petition under section 482 of the Code of Criminal Procedure seeks to challenge an order passed by the learned Metropolitan Magistrate, 23rd Court, Bombay, on an application preferred by the petitioner seeking an order of attachment of certain properties, hereinafter referred to as 'the disputed property' under section 146(1) of the Code. The facts leading to there proceedings have been set out in the judgment of the Court below and it is unnecessary for me to narrate them in great details. However, for the disposal of the points raised in this petition, I will mention only a few facts.

2. A premises consisting of five rooms and also one common room forming part of what is called shop No. 2 in a building named Stadium House at Bombay was taken on lease by five doctors of whom one is the petitioner. This was done as long ago as in the year 1955. The petitioner was the occupant of one of the rooms wherein he was carrying on his profession as a radiologist. Unfortunately in the year 1974 he suffered a heart attack and thereafter, doubly unfortunately, he developed an eye trouble which compelled him, at least temporarily, to give up his profession and go to Australia where his son and daughter-in-law are residing. Before he did that, he had sold away the apparatus required for his profession to one Dr. Deshmukh and the respondent herein.

3. It is mentioned by the petitioner that he returned to India on 18th of October, 1980 when he found that the room which, according to him, was still tenanted by him had been occupied by the respondent in this petition. This he came to know on or about 21st of October, 1980. After making certain efforts to obtain possession of the room, which proved unsuccessful, he filed an application under section 145 of the Code on 17th of December, 1980. The preliminary order under section 145(1) was passed by the learned Magistrate on 25th of February, 1981 and this order has been subsequently confirmed by this Court.

4. It is on 7th of August, 1981 that the application which has led to the present petition was filed under section 146 of the Code praying therein that the disputed property should be attached by an order of the Court. The learned Magistrate, by his judgment and order dated 3rd of June, 1982, dismissed the application by holding that the conditions on the satisfaction of which an order under section 146(1) could be passed did not exist in this case. It is this order that is challenged in this petition.

5. Mr. Chite, the learned Advocate appearing in support of the petition, his contended that the learned trial Magistrate has misdirected himself in holding that there should be in existence conditions of a more serious nature before an order of attachment could be passed under section 146(1). According to him, mere apprehension of a breach of the peace if alleged and if it is shown to exist should be sufficient for a Magistrate to act under section 146(1). He has taken me through the judgment of the learned trial Magistrate and also through the relevant parts of the application. In the application which led to the proceedings under section 145, the petitioner has mentioned the circumstances which I have briefly referred to above leading to his temporary migration to Australia and his return to Bombay. Thereafter he has mentioned that in the first week of August 1980 before he returned to India, the petitioner had actually written to Dr. Deshmukh that he was coming to Bombay in or about the end of October 1980. According to the petitioner, on 21st of October 1980 when he went to his consulting room along with his son-in law, he found that his name plated had been removed and the room had been occupied by the present respondent. Several others facts have been mentioned in the said application. However, it is not necessary to refer to the same.

6. That the respondent was already in possession of the disputed property when the same is thus established on the averments of the petitioner himself. It is true, as Mr. Chitre has pointed out, that this Court has already confirmed the view taken by the Court of first instance that conditions for passing an order under section 145(1), namely apprehension of a breach of the peace, existed when the petitioner approached the Court in December 1980. This, however, does not enable me to appreciate the next argument of Mr. Chitre that once an order under section 145(1) is passed, an order under section 146(1) should follow. Apprehension of a breach of the peace is the foundation for an order to be passed under section 145(1). Conditions which must be satisfied before an order under section 146(1) is passed are, however, totally different. The very fact that section 146(1) mentions that the order under that section is to be after the order under section 145(1) is passed must necessarily mean that the conditions on the basis of which the two orders are passed are different.

7. Section 146(1) says 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, 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. It is indeed the case of Mr. Chitre that here emergency exists, inasmuch as if the petitioner goes to the disputed property there is likelihood of a breach of the peace. It is not possible for me to accept this submission because in the first place the Magistrate must be satisfied that there is a case of emergency. A party cannot contend that by his action he will create an emergency, or an emergency will be created and, therefore, section 146(1) should be passed. In the instant case it has not been alleged nor has it been shown that there is any sudden emergency of such a nature as to call for an order of attachment. It is not alleged, for instance that the dispute property will be dissipated. Nor has it been alleged that the property is likely to be alienated by the respondent in favour of somebody else. Admittedly the respondent has been in settled possession of the disputed property even before the petitioner returned to India and before he went to the disputed property. I do not think it is necessary to dwell on this point any further because on the facts of this case I am satisfied that there is no emergency of any kind inviting an order under section 146(1).

8. Mr. Chitre, however, in support of his arguments relief upon certain authorities to which I must make a brief reference, though I am satisfied that none of them is relevant to the question arising under section 146(1) and definitely not relevant to the facts and circumstances of this case. The first of the judgments relied upon by Mr. Chitre is Amritlal N. Shah v. Nageswara Rao A.I.R. 1947 Mad 133, wherein it has been held that forcible dispossession need not necessarily mean that actual force should be used. It has been further held therein that dispossession on misrepresentation and improper threats are sufficient to constitute forcible dispossession. It is not necessary for me to consider whether this view is correct or not, because the question before me today is whether there is an apprehension of a breach of peace resulting from a forcible eviction.

9. Das Raj v. Emperor A.I.R. 1930 Lah 781, on which Mr. Chitre placed reliance next, is, in my opinion, so hopelessly irrelevant to the point involved before me that normally I would not have referred to this judgment at all but for the persistence with which this point has been stressed. Das Raj's case refers to the interpretation of the word 'emergency' occurring in section 72 of the Government of India Act (1919). On page 789 of the report it has been mentioned than a emergency may result, according to the very definition contained in Webster's Dictionary, 'from an unforseen occurrence or combination of circumstances'. It has been further mentioned that this combination may not take place all at once but gradually and immediate action may be rendered necessary when the culminating point is reached. The question before the High Court in Das Raj's case was where the action of the Governor General in Council in declaring an emergency under section 72 of the Act was justified. In my opinion, this judgment is of no relevance at all to the points involved in the present case.

10. Mr. Chitre then referred to Larchbank (Owners) v. British Petrol (Owners) 1943 App Cas299. The facts of this case disclosed that two vessels were approaching each other and there was actually a fog. Certain Admiralty directions had provided that the use of whistles or sirens in a fog by ships in convoy was undesirable and that they should not be sounded except in emergency or on hearing another ship approaching, when the master must use his discretion. In a collision action brought by the owners of one vessel against the owners of the other, the assessors took the view that, as a question of seamanship apart from the Admiralty directions, one of the ships should have sounded the fog signal. It was held by the House of Lords, that an 'emergency' had arisen, not by reason of the mere fact of the fog, but because the master of the British Petrol had good reason to think that the Larchbank might be approaching, even though he could not hear her, and that, accordingly, he should have sounded fog signals. I am unable to find out any relevance of this judgment to the present case. If it is suggested that an approaching emergency is also an emergency, then also on the facts of this case emergency of the type that is required for an order under section 146(1) does not exist.

11. The word 'emergency' has been defined in 'Words and Phrases Legally Defined' by Saunders, Volume 2, 1969 Edition, on page 153. Among others, the following definition is to be found therein :-

'Emergency' can be used to describe a state of things which is not the result of a sudden occurrence. A condition of things causing a reasonable apprehension of the near approach of danger would, I think, constitute an emergency. The gradual approach of a hostile invader might well at sometime or other constitute an emergency...'

It is suggested that an emergency may occur gradually and not suddenly. One need not quarrel with that suggestion. But I do not see how a party can say that he is going to create and emergency and then ask the Court to pass an order of attachment. It is not the suggestion that as a result of any action by any other person or party a situation is being created which could be characterised as an emergency warranting an order by the Court under section 146(1). Here is a party approaching the Court and saying that if he goes to the disputed property an emergency suddenly will be created and for handling that situation he should be armed with an order of attachment from the Court. The argument is hopelessly untenable and I have no hesitation in rejecting the same.

12. In the result, this petition must fail. Rule is accordingly, discharged. The order dated 3rd of June 1982 passed by the learned Metropolitan Magistrate, 23rd Court, in Criminal Case No. 4/N of 1981 is confirmed.

13. Since the preliminary order under section 145(1) has been passed nearly one and half years ago, the learned trial Magistrate will consider the feasibility of disposing of those proceedings as expeditiously as possible.


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