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Ganta Nookaraju and ors. Vs. Kuntsam Satyanarayana and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1972CriLJ66
AppellantGanta Nookaraju and ors.
RespondentKuntsam Satyanarayana and ors.
Excerpt:
.....the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - , prevention of breach of peace in a case of emergency, will be defeated:.....to prevent the parties amongst whom there is a dispute regarding its possession, from committing a breach of peace. the mere attachment of the property would not serve the purpose of preventing the parties from committing that breach. only taking the property in custodia legis can the object of preventing the breach of the peace be achieved, as both the parties are being restrained from entering the land where custody of the property is taken. it is not expected that the magistrate himself should take possession and manage the property. he should necessarily appoint someone to take possession and look after the property. therefore the power to attach the property would also include the power to manage the property by appointment of a receiver or any other person. otherwise the order.....
Judgment:
ORDER

A.D.V. Reddi, J.

1. The point that arises for determination in this revision case is whether in proceedings under Section 145. Criminal P. C. the Magistrate concerned can appoint a Receiver to take possession of and manage the properties pending final orders.

2. The dispute was with regard to Ac. 40-32 cents of land in Gopalapatnam village of Narisipatnam Taluk between the landlord and the tenants with regard to their respective rights under the Inams Abolition Act. There was civil litigation concerning the same and there were proceedings with regard to the delivery of possession. The A party claiming to be in possession in his own right, filed a petition before the Sub-Divisional Magistrate for initiating proceedings under Section 145. Criminal P. C. Thereupon M. C. No. 5/71 was registered and a notice was issued to the parties on 5-4-71 to appear and file their statements of claim and to adduce evidence by affidavits or otherwise. On 6-5-71 the Sub-Divisional Magistrate on the report of the Sub-Inspector of Police and the record of enquiry made by him found that a situation of emergency had been created calling for immediate action to avoid an imminent clash between the parties resulting in the breach of public peace and directed the attachment of the property under Section 145. Criminal P. C. and appointed the Tahsildar of Narisipatnam as Receiver to take possession of the property. The B party being aggrieved with the order has filed this petition to revise that order.

3. It is now contended that the appointment of a Receiver under Section 145, Criminal P. C. is illegal, that a Receiver could be appointed only under Section 145. Criminal P. C. and hence the order should be set aside. This contention of the petitioners herein receives some support from the earlier decisions of the Courts.

4. In Subadramma v. Satvan Swami 1910 Mad WN 821 (2) Avlins. J. held that the appointment of a Receiver under Section 145 appears to be ultra vires, as the only section authorising such a step is Clause (2) of Section 146 after conclusion of the possession on enquiry. A similar view was expressed in Rama-krishnam Pillai v. Naravana Chettiar 1933 Mad WN 917. where it was pointed out by Burn. J. that there is no provision in the Cr. P. C. for the appointment of a receiver during the pendency of a dispute under Section 145 Cr. P. C. and that the appointment of a Receiver can only be made under Section 146(2) Cr. P. C. after a final order has been passed attaching the property. In Mewa Lal v. Emperor AIR 1918 Pat. 197 reiving on an earlier decision of the Madras High Court in Srinivasa Pillay v. Sathavanpa Pillay (1912) 14 Ind Cas 759 (Mad) it was held that, where a Magistrate takes proceedings under Section 145 Criminal P. C., the object of the law is that he shall confirm the party in actual possession and he is not competent to dispossess such a party by appointing a receiver and the order of attachment which the law empowers him to make has no greater force than any civil court attachment, the effect of which is generally to restrain alienations. It was however recognised there that the right to attach under Section 145 carries with it the right to take the necessary step for the custody and management of the property and that the person appointed to take custody was only an agent or servant of the Magistrate acting under his order and he will not be having a right as the Receiver appointed in a civil court.

5. A contrary opinion is however expressed in a Bench Decision by the Madras High Court in Gopala Aiyar v. Krishnaswamy Iyer AIR 1920 Mad 209 where Sadasiva Ayyar and Burn JJ. held that a Magistrate had power to appoint a receiver under Section 145 of the Code of Criminal Procedure, though the powers of such a receiver might not be the same as those of one appointed under Section 146(2). A Bench of the Travancore and Cochin High Court in Joshua Sankaran v. Varghese Jacob AIR 1955 Trav Co. 190 held that the Magistrate was in order in exercising his jurisdiction under Section 145 Criminal P. C. by attaching the property and placing the same in the possession of a receiver. Following these in T. Sankaranaravana v. Achuthankutty Nair 0043/1969 : AIR1969Ker188 it was held that an appointment of a receiver under Section 145 can be made.

6. Under the proviso to Section 145 Criminal P. C. if the Magistrate considers the case as one of emergency he may at any time attach the subject of dispute pending his decision under that section. It does not in so many words say that he can appoint a receiver. The word 'attach' in the above section cannot be understood to have the same meaning of the word 'attachment' referred to in the Code of Civil Procedure which is to restrain alienations of the property. The object of Section 145 Criminal P. C. is to prevent the parties amongst whom there is a dispute regarding its possession, from committing a breach of peace. The mere attachment of the property would not serve the purpose of preventing the parties from committing that breach. Only taking the property in custodia legis can the object of preventing the breach of the peace be achieved, as both the parties are being restrained from entering the land where custody of the property is taken. It is not expected that the Magistrate himself should take possession and manage the property. He should necessarily appoint someone to take possession and look after the property. Therefore the power to attach the property would also include the power to manage the property by appointment of a receiver or any other person. Otherwise the order itself will be ineffective and the object to be achieved viz., prevention of breach of peace in a case of emergency, will be defeated:

Section 145 Criminal P. C. and Section 146(2) are two independent provisions. In the case of Section 145 the Magistrate, even before starting the enquiry. is expected to take action by attaching the property to prevent an imminent danger of breach of peace in an emergency, whereas under Section 146(2) Criminal P. C. after enquiry the Magistrate, if he should find that he cannot come to a conclusion as to who is in actual possession can appoint a receiver and refer the matter to a civil court. The mere fact that the term 'Receiver' is not mentioned in Section 145 is no ground for the contention that no such receiver can be appointed while acting under that section. It will be meaningless to say that he can attach but not take any further steps with regard to the management, as mere attachment, if it is to be understood as in a civil case, will not serve the purpose of preventing a breach of the peace. The word 'attach' carries With it the power to take possession of the property and taking possession of the property does not mean that he should put a guard over it and keep it idle, for preventing the breach of peace, but take possession and manage it. as such management will be to the benefit of the parties whoever it be that succeeds and that can be done only by the appointment of a receiver.

7. In the present case, it was the Tahsildar that had been appointed as a receiver and had been directed to take possession. It is now stated that even before the stay order issued by this Court could be communicated, the Tahsildar had taken possession and had started managing the property, under these circumstances, I see no illegality in the order passed by the Magistrate appointing a receiver under Section 145 Criminal P.C.

8. The petition is therefore dismissed.


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