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Chandi Prasad and ors. Vs. Om Prakash Kanodia and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1976CriLJ209
AppellantChandi Prasad and ors.
RespondentOm Prakash Kanodia and ors.
Excerpt:
- - 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. (new). the word 'magistrate' has been clearly used as something different than 'a competent court. 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. only in case he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute, he can withdraw the attachment and drop the proceedings......schools and the police reported that there was an apprehension of the breach of the peace. the learned magistrate then passed the preliminary order dated 22-7-1974 and started proceedings under section 145, cr.p.c.subsequently another station officer of police station dhebarwa submitted another report dated 3-11-1974 to the effect that there was no longer any apprehension of breach of the peace. however, a third report was submitted by the station officer, police sation dhebarwa dated 2-12-1974 to the effect that there was an apprehension of breach of the peace and the case was of grave emergency. a copy of that report has not been filed by any of the parties. on the basis of that report, the sub-divisional magistrate, naugarh ordered attachment of the school building on 4th of.....
Judgment:
ORDER

H.N. Kapoor, J.

1. This petition has been filed under Section 482, Cr.P.C. for quashing the proceedings before the Sub-Divisional Magistrate, Naugarh, district Basti under Section 145, Cr.P.C. A dispute arose in respect of the premises in which a school was being run in Baruni Bazar in the name of Amar Bal Vidya Mandir. It was being run since 1971 in the aforesaid name by the managing committee comprising of the present applicants including the pradhan of the village, namely, Chandi Prasad. The applicants claimed that the school building was constructed on banjar land belonging to the Gram Sabha. The applicants were described as the second party. The first party consisted of Balmukund Giri (now dead), Om Prakash Kanodia and Haripati Tripathi. They are now the opposite parties. They claimed that the building was constructed on the land belonging to Balmukund Giri which he had obtained on a patta thirty years back and that Balmukund Giri himself had started the school in the year 1971 and had appointed the first party as its managing body to run the school.

But he felt dissatisfied and in 1974 he appointed another managing committee to run the school by means of a registered deed. That managing committee consisted of the persons who are opposite parties Nos. 1 and 2 in this petition besides Balmukund Giri himself. The name of the school too was changed into Adharshya Amar Bal Vidya Mandir. It appears that both the parties started running parallel schools and the police reported that there was an apprehension of the breach of the peace. The learned Magistrate then passed the preliminary order dated 22-7-1974 and started proceedings under Section 145, Cr.P.C.

Subsequently another station officer of Police Station Dhebarwa submitted another report dated 3-11-1974 to the effect that there was no longer any apprehension of breach of the peace. However, a third report was submitted by the station officer, police sation Dhebarwa dated 2-12-1974 to the effect that there was an apprehension of breach of the peace and the case was of grave emergency. A copy of that report has not been filed by any of the parties. On the basis of that report, the Sub-Divisional Magistrate, Naugarh ordered attachment of the school building on 4th of December, 197.4 considering the case as of grave emergency. However, even after passing this order, the learned Magistrate proceeded with the case under Section 145, Cr.P.C. with a view to pass the final order under that section. The petitioners have filed this petition for quashing those proceedings.

2. Sri G. P, Mathur, learned Counsel for the petitioners has argued that after the order of attachment was passed by the learned Magistrate under Section 146(1) Cr.P.C. (New), he had no jurisdiction to continue with the proceedings under S. 145 Cr.P.C. According to him, attachment was to continue until the rights of the parties were determined by a competent court exercising civil jurisdiction. He has conceded that it was open to the Magistrate to make an enquiry only for the purpose of finding out whether apprehension of breach of the peace still existed or not as the Magistrate could withdraw attachment at any time under the proviso to Sub-section (1) of Section 146, Cr.P.C. (New).

He has also argued that the proceedings under Section 145, Cr.P.C. were illegal from the very beginning and no attachment should have been made as the dispute was only with regard to the administration of the school which cannot be considered to be a dispute within the meaning of Section 145, Cr.P.C. as was held in the case of Onkar Nath Tiwari v. Ram Anjore Misra (1973 Cri LJ 1885) (All). So far as the last argument is concerned, it may be observed that in the present case there is a dispute about the possession and ownership of the building itself as it was claimed to be his building by Balmukund Giri, who is now dead. He claimed it to be his private property and formed a trust by a registered deed appointing the opposite parties 1 and 2 as members of the managing committee. On the other hand the petitioners claimed1 that th school building was constructed on a banjar land by the former managing committee and that it was not the personal property of Balmukund Giri. The dispute does appear to be of civil nature which will have to be decided by a civil court.

3. In the present case, I 'shall, therefore, confine myself to the effect of the attachment order passed under Section 146(1) Cr.P.C. (New). Section 146(1) Cr.P.C. x{New) reads as follows:

146 (1)-If the Magistrate at any time after making the order under sub-s. (1) or 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 S. 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.learned Counsel for the petitioners has argued that on the plain reading of this section the property which has been attached under Section 146(1) Cr.P.C. can be released only after the rights of the parties have been determined by a competent court and the Magistrate had no power to proceed further under Section 145, Cr.P.C. except for the purpose of finding out whether there was still an apprehension of breach of the peace.

Sri V. S. Jauhari, learned Counsel for the opposite parties has argued that since! the attachment was on the ground of emergency, it was open to the learned Magistrate to proceed further under Section 145, Cr.P.C. According to him, it would have been a different matter if the attachment was on any of the other two grounds, that is, the Magistrate decided that none of the parties was then in such possession as referred to in Section 145, Cr.P.C. or if he was unable to satisfy himself as to which of them was then in such possession of the subject of dispute. In that case he has conceded that attachment could have continued till the dispute was finally decided by some civil court, revenue court or such other competent court, I see no reason for drawing such distinction. The last clause, 'he may attach...to the possession thereof obviously governs all the three clauses including the clause when the attachment is made for emergency. learned Counsel for the opposite parties has referred to the case of MGMT Marwari Primary Vidyalaya v. S. D. M. Deoria (1975 All LR 235). He has laid great stress on the following observation made by Bakshi, J. in that case:Reading Sections 145(1) and 146(1), Cr.P.C. together the inference is obvious that both these sections empower the Magistrate to pass an interim order, during the continuance of the proceedings under Section 145(1), Cr. P. C, or prior to the passing of the final order; if he considers the case of emergency.

His argument is that such an order on the ground of emergency can be passed during the continuance of the proceedings under Section 145(1) Cr.P.C. which obviously means that the proceedings under Section 145(1) Cri. P.C. are to continue. I do not agree with this contention. No doubt, the order of attachment on the ground of emergency can be passed at any stage during the continuance of the proceedings under Section 145(1) Cr.P.C. but it has nowhere been held by the learned Judge that the proceedings under Section 145(1) Cr.P.C. are still to continue after such an order of attachment is passed.

4. Sri Kazmi, learned Counsel for the State has raised another argument which was adopted, by Sri Jauhari also. According to him, the words 'competent court' occurring in Section 146(1) Cr.P.C. would include the court of the Magistrate also which was seized of the case under Section 145, Cr.P.C. and which could determine the rights of the parties witli regard to the person entitled to the possession thereof. According to him there is thus no bar in the case of the Magistrate to continue the proceedings under Section 145, Cr.P.C. and pass the final order even after the property has been attached on the ground of emergency.

According to him, this can be the only way of reconciling the provisions of Section 145 (4) Code of Criminal Procedure, 1898 with the provisions of Section 146(1) Cr.P.C. (New). He has laid great stress on the fact that under Section 146 (1) Code of Criminal Procedure of 1898 the word 'civil court' was used and not 'competent court'. His contention is that if this interpretation is not given to the words 'competent court' appearing in Section 146(1) all other provisions of Section 145, Cr.P.C. will become redundant after the Magistrate passes the order of attachment immediately after passing the preliminary order under Section 145(1), Cr.P.C.

5. We have to interpret the law as it stands. There is no provision for attachment under Section 145, Cr.P.C. under the new Code similar to the provision of attachment under Section 145 (4) Cr.P.C. (Old). It is not necessary for a Magistrate to pass an order of attachment in every case. He can then proceed under Section 145, Cr.P.C. and pass the final order. But as soon as he passes the order of attachment, consequences are to follow as provided under Section 146(1), Cr.P.C. (New). The word 'Magistrate' has been clearly used as something different than 'a competent court. Rights about possession are decided by revenue courts and consolidation courts apart from civil courts. In other States there may be courts known by different names. It is for this reason that the words 'competent court' have been used instead of the words 'civil court' which can determine the rights of the parties with regard to the person entitled to the possession. It follows that it must be with regard to the possession generally.

A Magistrate under Section 145, Cr.P.C. adjudicates about possession for a limited purpose only and confines himself to the question of possession at the time of the passing of the preliminary order or two months prior to the date on which the report of the police officer or other information was received by the Magistrate. In my opinion, there is no escape from the conclusion that after the Magistrate has attached the property, the attachment has to be continued until the rights of the parties are determined by a competent court oi civil jurisdiction which can decide the title of the parties. 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.

6. In the result the petition is allowed. The order of the learned Magistrate dated 23-4-1975 (Annexure 5) is quashed and he is directed not to proceed further with the case under Section 145, Cr.P.C. except for the purpose of making an enquiry on the point whether there is no longer any likelihood of breach of the peace with regard to the subject of dispute. Only in case he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute, he can withdraw the attachment and drop the proceedings.


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