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irshad Ahmad Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1978CriLJ1464
Appellantirshad Ahmad
RespondentState and ors.
Cases ReferredQamaruddin Husain v. Mushtaq Ahmad. The
Excerpt:
- - c, on its basis he has argued that if the magistrate is satisfied from a police report or other information that the dispute is likely to cause breach of peace, regarding the right of user of land or water, he shall make an order in writing stating the grounds of his satisfaction and requiring the parties to the dispute to attend his court and to file their written statements in support of their respective claims......the applicant and have also perused the impugned orders. it is very strenuously contended by the applicant's counsel that the magistrate had no power under b. 147, cr. p.c. to attach the disputed property since under this section only a right of user of property is involved. learned counsel for the applicant has placed before me the entire section 147, cr. p. c, on its basis he has argued that if the magistrate is satisfied from a police report or other information that the dispute is likely to cause breach of peace, regarding the right of user of land or water, he shall make an order in writing stating the grounds of his satisfaction and requiring the parties to the dispute to attend his court and to file their written statements in support of their respective claims. learned counsel.....
Judgment:
ORDER

P.N. Bakshi, J.

1. This application in revision arises out of the proceedings under Section 147, Cr. P.C. It appears that on the report of the station Officer Kotwali that there existed a dispute between the Hindu and Muslim sections of the community, on the question of user of Sati Ka Math, which was likely to endanger and generate communal tension, proceedings under Section 147, Cr. P.C. were undertaken. Since the case was considered of emergency, a prayer was also made for the attachment of the disputed property during the enquiry. The Magistrate passed an order on the receipt of the report as follows:

Index, register case under Section 147 and put up. Issue notices.

This was an administrative order. In fact another order had been passed on 25th Dec., 1973. That was the preliminary order in the case. That order also incorporates that since there was a likelihood of a breach of peace, and the case was one of emergency, the property in dispute was attached and the parties were restrained from their respective user of the disputed property. Aggrieved thereby a revision was filed before the Sessions Judge, which has been dismissed on 30th March, 1974.

2. I have heard learned Counsel for the applicant and have also perused the impugned orders. It is very strenuously contended by the applicant's counsel that the Magistrate had no power under B. 147, Cr. P.C. to attach the disputed property since under this section only a right of user of property is involved. Learned Counsel for the applicant has placed before me the entire Section 147, Cr. P. C, On its basis he has argued that if the Magistrate is satisfied from a Police report or other information that the dispute is likely to cause breach of peace, regarding the right of user of land or water, he shall make an order in writing stating the grounds of his satisfaction and requiring the parties to the dispute to attend his court and to file their written statements in support of their respective claims. Learned Counsel has urged that under Section 147(2) the Magistrate is then required to peruse the statement and to hear the parties and to receive all such evidence as may be produced before him and then decide the rights of the parties, as they existed on the date. Under Sub-section (2) of Section 147, Cr. P.C., the learned Counsel has argued that the Magistrate can pass a final order prohibiting interference with the exercise of such right. The submission is that on a reading of this section no inference can be drawn that it empowers the Magistrate to pass any interim order attaching the property in dispute during the pendency of the enquiry before him.

3. I have given my serious consideration to the submissions made by the applicant's counsel. But unfortunately I do not find myself in agreement with him. Section 147(1 A) Cr. P.C. reads as follows:

(1-A) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists and the provisions of Section 145 shall, as far as may be, be applicable in the case of such inquiry.

It is clear from a perusal of the aforesaid section that during the course of the enquiry under Section 147, Cr. P.C. the Legislature in its wisdom had thought it fit to apply the provisions of Section 145, Cr. P.C. as far as they may be made applicable. In other words, if there is a provision in Section 145 Cr. P.C. which is non-existent in Section 147, Cr. P.C. the same can be applied even in proceedings under Section 147, Cr. P.C. counsel for the applicant submits that if a question of non-existence of breach of peace exists then that question can be reagitated and decided by a court not only under Section 145, Cr. P.C. but also under Section 147, Cr. P.C. But he is not prepared to accept the position that if the case is one of emergency then the relevant provisions which authorise the taking of immediate action and attachment of the property under Section 145, Cr. P.C. would also be exercisable under Section 147, Cr. P.C. I see no reason for this distinction. So long as the provisions of Section 145, Cr. P.C. do not conflict with the provisions of Section 147, Cr. P.C. it will be inconceivable on all principles of interpretation of statutes that the existing provisions in Section 145, Cr. P.C. should not be made applicable for the exercise of jurisdiction under Section 147, Cr. P.C. No part of a legislation can be deemed to be redundant and useless. Every part has to be synchronised and reconciled to its earlier part. In the instant case there can be no doubt that the provisions of Section 145, Cr. P.C. were applied to proceedings under Section 147, Cr. P.C. The Legislature thought it fit that the emergency powers under Section 145 should also be given in proceedings under Section 147, Cr. P.C. otherwise it would lead to serious consequences. It is for this purpose that the words 'the provisions of Section 145 shall, as far as may be, be applicable in the case of such inquiry' have been inserted in Section 147(1-A). I am supported in my view by a decision of this Court reported in 1963 All LJ 784 Trijugi Tiwari v. State while considering this question of the applicability of the power of attachment granted by the statute in its application to Section 147, Cr. P.C. Mr. Justice W. Broome took a view which is the same which I am taking now. I do not find any reason to differ with the reasonings which have been given in that ruling, which I fully adopt. In my view, therefore, the emergency power of interim attachment does exist in a court while exercising its jurisdiction in an inquiry under Section 147, Cr. P.C.

4. Learned Counsel for the applicant has cited two cases in support of his contention with which I shall deal now. One such case is reported in 1964 All WR (HC) 731, Devi Dayal v. Murlidhar Misra. This decision is by Mr. Justice H. C. P. Tripathi. With all due respect to the learned Judge, I must observe that the question of law has not been dealt with or discussed in that case. No reason at all has been given as to why one view should be accepted in preference to the other. All that has been observed in a few lines in the judgment is as follows;

This was an interim order which was passed by the Magistrate presumably with a view to avoid breach of the peace during the pendency of the enquiry under Section 147, Cr. P.C. Section 147 Cr. P.C., however, does not provide for passing an interim order without allowing the parties to lead evidence and without assessing their evidence.

It is surprising that even though this decision has come into existence later on, the earlier decision of Mr. Justice W. Broome was perhaps not cited before him or not considered, in which a specific view has been taken and various reasons have been given. This case in my opinion merely lays down that the interim order can be passed but after allowing the parties to lead evidence. It does not lay down that there is a total prohibition towards the passing of the interim order. Moreover, as mentioned above, no reasons have been given for holding the aforesaid view.

5. The next case cited by the applicant's counsel is a decision of Mr. Justice Kaul, reported in : AIR1949All616 . Qamaruddin Husain v. Mushtaq Ahmad. The facts of that case were totally different to the facts of the present case. I have carefully perused that ruling. In that case Mr. Sanwal had passed the following order:

I do order the said Qamaruddin Hasan, Shamsuddin Hasan and Waziruddin Hasan, or any one in their interest shall not take possession of the said land to the exclusion of the enjoyment of the right of use aforesaid until they shall obtain a decree or order of the competent court adjudging them to be entitled to exclusive possession.

This Court came to the conclusion that such a final order could not be defended unless the enquiry is complete. Mr. Justice Kaul while discussing this question has made the following observation:

May be that Mr. Sanwal could direct the petitioners not to interfere with the exercise of the right claimed by Mushtaq Ahmad pending disposal of the matter before him, but surely he could not at the initial stage order them to desist from interfering with the exercise of the right claimed by Ch. Mushtaq Ahmad until they shall obtain a decree or order of the competent court adjudging them to be entitled to exclusive possession.

In my opinion, the view taken by Mr. Justice Kaul completely supports my view that an interim order can be passed under Section 145, Cr. P.C. Mr. Sanwal had practically decided the whole case. The order passed by him could not be deemed to be an interim order by any stretch of imagination. As such that order was struck down by this Court.

6. Having thus considered the entire evidence and the question of law argued by the learned Counsel for the applicant, I am of the opinion that the Magistrate does have powers in an inquiry under Section 147, Cr. P.C. to pass interim orders of attachment in case he considers it one of emergency.

7. For the reasons given above, I do not find any force in the revision, which is hereby dismissed.


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