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Sukhdev Singh Vs. Bachan Kaur and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Revn. No. 63-Respondent of 1969
Judge
Reported in1971CriLJ635
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145(4)
AppellantSukhdev Singh
RespondentBachan Kaur and ors.
Respondent Advocate T.S. Mangat, Adv.
Cases ReferredShiv Lal v. Har Lal
Excerpt:
.....vide order dated the 25th march, 1969 whereby he has recommended that the order of the executive magistrate sangrur dated the 12th of november, 1968 appointing receiver of the property attached under section 145(4) of the criminal procedure code, be quashed. and can only be passed under section 146 (2). the learned sessions judge even after considering that there was no clear finding by the executive magistrate that it was a case of emergency has not recommended that the order of attachment of property be set aside. 3. the second contention ,however found favour with the learned sessions judge and it has therefore, been recommended that the order of the appointment of the receiver be quashed. varghese jacob, air 1955 trav-co 190 and it was held as under :where no receiver has been..........even in subadramma's case, (1910) 7 ind cas 895 (mad) no reasons have been mentioned as to why the power of attachment contained in sub-sec (4) of s. 145, criminal p. c. would not include the power to manage the property and if necessary to take possession of the property through receiver. argument raised in subadramma's case, (1910) 7 ind cas 895 (mad) was that clause (2) of section 146, criminal p. c. could not be read so as to make this provision applicable to attachment under section 145 (4). the contention that the power to attach contained in sub-section (4) of s. 145 included the power to manage the property and to appoint a receiver, if need be, was not even considered in this case.4. in mewa lal's case, 44 ind cas 41 = (air 1918 pat 197) (supra) it was no doubt observed that a.....
Judgment:
ORDER

1. This is a reference by Sessions Judge, Sangrur vide order dated the 25th March, 1969 whereby he has recommended that the order of the Executive Magistrate Sangrur dated the 12th of November, 1968 appointing receiver of the property attached under Section 145(4) of the Criminal Procedure Code, be quashed.

2. The facts giving rise to this petition are not in dispute. Bachan Singh was murdered on 15th of December 1967 and his death led to dispute regarding the agricultural land left by him. This dispute was between Bachan Kaur who alleged herself to be the widow of Bachan Singh and Sukhdev Singh who contended that he was the daughter's son of Bachan Singh. Sukhdev Singh also denied that BaChan Kaur was the widow of the deceased. At first Bachan Kaur filed a suit for perpetual injunction restraining Sukhdev Singh and others from interfering with her possession and in that suit obtained a temporary injunction. Later on this injunction was vacated on 7th October, 1968. Bachan Kaur made an application on 26th August, 1968 before the Deputy Commissioner. Sangrur which ultimately reached Executive Magistrate and on the basis of the police report, proceedings under Section 145, Criminal P.C. were taken and on the 12th, November, 1968, the Executive Magistrate, passed a preliminary order holding that a dispute likely to occasion the breach of the peace between the two parties existed. A notice was ordered to be served on the parties asking them to appear on 28th, December 1968. Further-more by this order the land in dispute was attached and Naib Thasildar, Sunam was appointed as a receiver. The receiver was directed not to allow any of the parties to enter on the land. Against this order Sukhdev Singh and his father Karter Singh filed a revision petition in the Court of the Sessions Judge and when the revision petition came up for hearing two contentions were raised on behalf of the petitioners. It was firstly contended that attachment of the land could not have been ordered as there was no finding by the learned Magistrate that the case was one of the emergency. The second ground taken by the petitioners was that in any case, even if the order of attachment could be passed, no order could be legally passed by the Executive Magistrate as such an order was not envisaged by sub-section (4) of S. 145. Criminal P. C. and can only be passed under Section 146 (2). The learned Sessions Judge even after considering that there was no clear finding by the Executive Magistrate that it was a case of emergency has not recommended that the order of attachment of property be set aside. It was observed by the Sessions Judge that the order of attachment though not proper was not to be interfered with as such an order could be passed by the Executive Magistrate in the exercise of his discretionary powers.

3. The second contention , however found favour with the learned Sessions Judge and it has therefore, been recommended that the order of the appointment of the receiver be quashed. Support for this view has been sought from Diwan Chand v. Emperor, AIR 1929 Lah 223 wherein it was observed as under :-

'Section 146(2) cannot be so read as to make its provisions apply to attachment under Section 145(4) and the appointment of receiver under Section 145(4) is illegal'.

While holding that there is no power of appointment of receiver under Section 145 (4), Dilip Singh, J. who decided Diwan Chand's case. AIR 1929 Lah 223 followed Subadramma v. Satyaswami, (1910) 7 Ind Cas 895 (Mad) and Mewa Lal v. Emperor, 44 Ind Cas 41 = (AIR 1918 Pat 197). No reasons have been given for this view in Diwan Chand's case, AIR 1929 Lah 223 and even in Subadramma's case, (1910) 7 Ind Cas 895 (Mad) no reasons have been mentioned as to why the power of attachment contained in sub-sec (4) of S. 145, Criminal P. C. would not include the power to manage the property and if necessary to take possession of the property through receiver. Argument raised in Subadramma's case, (1910) 7 Ind Cas 895 (Mad) was that Clause (2) of Section 146, Criminal P. C. could not be read so as to make this provision applicable to attachment under Section 145 (4). The contention that the power to attach contained in sub-section (4) of S. 145 included the power to manage the property and to appoint a receiver, if need be, was not even considered in this case.

4. In Mewa Lal's case, 44 Ind Cas 41 = (AIR 1918 Pat 197) (supra) it was no doubt observed that a receiver could not be appointed except under Section 146. But this view was based on certain observations in Srinivasa Pillay v. Sathyappa Pillay, (1912) 14 Ind Cas 759 = (13 Cri LJ 295) (Mad), which observations in fact do not lend support to this view. The relevant observations in Srinivasa Pillay's case, (1912) 14 Ind Cas 759 = (13 Cri LJ 295) (Mad) are as follows :-

'The Receiver appointed under that Section 146 has got the power of a Receiver appointed under the Code of Civil Procedure. He is invested by law with powers which he can exercise himself. But the Receiver appointed under this Section 145 may not have such powers. He will only be an agent or servant of the Magistrate acting under his order. It is an administrative order passed for the management of property which he has attached. The right to attach carries with it the right to take the necessary steps for its custody and management. It is not a judicial order concerning the petitioners.

The above observations not only do not support the view taken in Mewalal's case. 44 Ind Cas 41 = (AIR 1918 Pat 197) but in fact show that the Magistrate has the powers to take possession of the property and, if necessary to have it managed through a receiver or any other agency.

5. Though Diwan Chand's case, AIR 1929 Lah 223 (supra) was not considered in Prem Kaur v. Benarsi Das, AIR 1933 Lah 409, but Bhide, J. after considering Mewa Lal's case, 44 Ind Cas 41 = (AIR 1918 Pat 197) took the contrary view and held that the attachment under Section 145 may be made by taking possession or by appointment of a receiver. In arriving at this conclusion Bhide, J. relied on the following observations made in Srinivasa Pillay's case, (1912) 14 Ind Cas 759 = (13 Cri LJ 295) (Mad) :

'That the right to attach property carries with it the right to take necessary steps for its custody and management and that a Receiver can be appointed for the purpose under Section 145, Criminal P. C. just as he can be appointed under Section 146, Criminal P. C. though in the former case he acts merely as an agent of the Court and has not all the powers which are specifically conferred by Section 146, Criminal P. C. upon a Receiver, appointed under that section.'

This point was also considered in Madho Lal v. Mt. Ladi, AIR 1951 Ajmer 12, wherein it was remarked that :-

'That party against whom an order of attachment has been passed under Section 145(4) proviso(2) can be dispossessed from the property by the Nazir under the directions of the Court. It is immaterial whether the Nazir is designated as a receiver or a mere servant of the Court.'

The same view was taken by a Division Bench of the Travancore - Cochin High Court in Joshua Sankaran v. Varghese Jacob, AIR 1955 Trav-Co 190 and it was held as under :-

'Where no Receiver has been appointed by the Civil Court and the plaintiff's case of possession is only pending investigation and decision by that Court, the Magistrate cannot keep quiet if he is satisfied that the dispute about possession is likely to result in a breach of the peace. To prevent anything like that happening, he could attach property and place it in the hands of a Receiver.' In Jethmul Bhojraj v. Harbans Narain Singh, AIR 1955 Pat 92, Chowdhury, J. made the following observations which also support the view that a receiver can be appointed under Section 145 :- 'The right of the Magistrate to attach property in dispute under Section 145(4), Criminal P. C. includes his right to make suitable arrangement for the management of the attached property. The order of attachment is not an administrative order, and therefore the right to take necessary steps for the management of the property attached, also cannot be said to be an administrative order so as to exclude the possibility of interference by the High Court under any circumstances.'

6. This question also came for consideration before this Court in Shiv Lal v. Har Lal, (1966) 68 Pun LR (Supp) 294 and Bedi, J. observed as under :-

'It is crystal clear that the Magistrate could attach the disputed property. If that is all there could be no doubt that the Magistrate could appoint a receiver also at that time. The power of attachment naturally carried with it the power of appointment of receiver : otherwise, it will be entirely ineffective. It is not expected that the Magistrate after attaching the property under Section 145 of the Criminal P. C. would himself go and take possession of the land and start functioning as a receiver.

7. For the foregoing reasons and following the view taken by Bedi, J. I hold that the Magistrate has powers under Section 145(4) of the Criminal P. C. not only to take possession of the property after passing an order of attachment but also to manage the property through a receiver or a servant of the Court. The power to attach property would include the power to manage it by the appointment of a receiver or through any other agency. Taking this view of the matter I decline the reference and uphold the order of the Executive Magistrate dated the 12th , November, 1968.

8. Reference not accepted.


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