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Kartarsingh Narainsingh and anr. Vs. Lallusingh Padamsingh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 117 of 1960
Judge
Reported inAIR1962MP104
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145(4)
AppellantKartarsingh Narainsingh and anr.
RespondentLallusingh Padamsingh and ors.
Advocates:J.P. Gupta, Adv.
DispositionRevision dismissed
Cases ReferredSri Ram v. State
Excerpt:
- - the observations of the learned judge on this point are clearly obiter. the intention of the legislature in enacting the 3rd proviso to this subsection clearly was to enable a magistrate in a case of emergency to attach the property in dispute at any time irrespective of what is provided in the main enactment. applicable to a case is that the magistrate concerned should have passed a preliminary order stating that ho is satisfied that a dispute likely to cause a breach, of the peace exists and further held that there is an emergency which makes it necessary for the property in dispute to be attached. if these two conditions are satisfied the magistrate has jurisdiction to pass an order of attachment without waiting till the preliminary order is served on the opposite party......preliminary order passed under sub-section (1) of section 145, cri. p.c. has been served on the opposite party. 2. reliance has been placed by the learned counsel for the applicants on the case of sri ram v. state, air 1958 punj 47. that was a case in which the learned judge who decided it had come to the conclusion that no preliminary order had in fact been passed by the magistrate concerned. no doubt the learned judge further held that even on the assumption that the order dated 25-5-1956 is a preliminary order under sub-section (1) of section 145, cri. p. c., the magistrate had no jurisdiction to issue an order of attachment prior to its service on the opposite party. the observations of the learned judge on this point are clearly obiter. there is no reason to suppose that the.....
Judgment:
ORDER

P.R. Sharma, J.

1. The only question which arises for consideration in this revision application is whether a Magistrate can order attachment of the property in dispute under the 3rd proviso to Sub-section (4) of Section 145, Cri. P, C. before the preliminary order passed under Sub-section (1) of Section 145, Cri. P.C. has been served on the opposite party.

2. Reliance has been placed by the learned counsel for the applicants on the case of Sri Ram v. State, AIR 1958 Punj 47. That was a case in which the learned Judge who decided it had come to the conclusion that no preliminary order had in fact been passed by the Magistrate concerned. No doubt the learned Judge further held that even on the assumption that the order dated 25-5-1956 is a preliminary order under Sub-section (1) of Section 145, Cri. P. C., the Magistrate had no jurisdiction to issue an order of attachment prior to its service on the opposite party. The observations of the learned Judge on this point are clearly obiter. There is no reason to suppose that the words 'at any time' used in the 3rd proviso to Sub-section (4) of Section 145, Cri. P. C. are limited in their scope by the provisions of Sub-section (4). All that Sub-section (4) of Section 145, Cri. P. C. signifies is that after the preliminary order has been served on the opposite party, the Magistrate shall proceed to hold an inquiry into the respective claims of the parties. The intention of the legislature in enacting the 3rd proviso to this subsection clearly was to enable a Magistrate in a case of emergency to attach the property in dispute at any time irrespective of what is provided in the main enactment.

3. I am afraid the interpretation placed upon this proviso by Tekchand, J. has the effect of rendering nugatory the words 'at any time' which have been designedly used by the legislature in proviso 3 to Sub-section (4) of Section 145, Cri. P. C. While an exception is a part of the enacting part of a Section, the proviso follows the enacting part of it and is in a way independent of it. (Halsbury's Laws of England 2nd Edition at p. 484, Vol. 31). Crawford also has observed in his statutory construction as follows:

'A proviso on the other hand is a clause added, to an enactment for the purpose of acting as a restraint upon or as a qualification of the generality of the language which it follows.'

On applying this principle it would follow that although the provisions of Sub-section (4) of Section 145, Cri. P. C. come into play only after the preliminary order has been served on the opposite, party, the third proviso to that sub-section cannot be placed under a similar restriction in view of the fact that its provisions are intended to act as a, qualification on the generality of the language of the main enactment as also by reason of the use of the words 'at any time', which are words oi the widest amplitude, in the proviso itself. In my opinion, all that is necessary for rendering the third proviso to Sub-section (4) of Section 145, Cri. P. C. applicable to a case is that the Magistrate concerned should have passed a preliminary order stating that ho is satisfied that a dispute likely to cause a breach, of the peace exists and further held that there is an emergency which makes it necessary for the property in dispute to be attached. If these two conditions are satisfied the Magistrate has jurisdiction to pass an Order of attachment without waiting till the preliminary order is served on the opposite party.

4. I do not, therefore, see any force in this.revision petition. It is hereby dismissed summarily.


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