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Mathuralal Vs. Bhanwarlal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1980SC242; 1980CriLJ1; (1979)4SCC665; [1980]1SCR620
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145, 145(1), 145(3), 145(4), 145(5), 145(6), 146 and 146(1)
AppellantMathuralal
RespondentBhanwarlal and anr.
Cases ReferredOrs. v. Sitaram B. Naik and Anr. (supra). What
Excerpt:
......(8) .(8) .(9) .(9) .(9) .(10) .(10) .(10) .(146) (1) if the (146) (1) if the (146) (1) if the magistrate magistrate magistrate descides is of opinion at any time that none of that none after making the parties of the parties the order under was then in such was then in such sub-section possession, or possession, of (1) of section 145 is unable to the subject of considers satisfy himself dispute, he the case to be as to which may attach it, one of emergency, of them was then and draw up or if he in such pos- a statement decides that session of of the facts of none of the subject of the case and the parties was dispute, he may forward the then in such pos- attach it until record of session as is a competent court the proceeding to referred to on has deter- a civil court section 145,..........being subsequently the subject of appointed by appointed by dispute by any any civil any civil civil court, court, possession court, possession the magistrate- shall be made shall be made over to over to him by the him by the receiver receiver appointed by the appointed by the magistrate, who magistrate, who shall thereupon shall thereupon be dis- be dis- charged. charged. (a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the civil. court and shall thereafter discharge the receiver appointed by him; (b) may make such other incidental or consequential orders as may be just.4. quite obviously, sections 145 and 146 of the criminal procedure code together constitute a scheme for the resolution of a.....
Judgment:

O. Chinnappa Reddy, J.

1. On the report of the Station House Officer, Manak Chowk, Ratlam, that there was a dispute between Mathuralal and Bhanwarlal concerning a house situated in Kambalpatti, Ghas Bazar, Ratlam, which was likely to cause a breach of the peace, the Sub Divisional Magistrate, Ratlam, passed a preliminary order under Section 145(1) of the CrPC 1973, on 1st March, 1978. On 2nd March, 1978, the learned Magistrate attached the subject of dispute under Section 145(1) Criminal Procedure Code considering the case to be one of emergency. Thereafter, when the learned Magistrate wanted to proceed with the enquiry under Section 145 Criminal Procedure Code, an objection was raised by Mathuralal that such an enquiry was incompetent once the subject of the dispute had been attached under Section 146 Criminal Procedure Code. The objection was overruled by the learned Magistrate. Successive Revisions taken before the Sessions Judge and the High Court having borne no fruit, Mathuralat has filed the present appeal by special leave of this Court. The High Court, we may mention here, thought that the matter was concluded against the appellant by the decision of this Court in Chandu Naik and Ors. v. Sitaram B. Naik and Anr. : 1978CriLJ356

2. Shri Mukherji, learned Counsel for the appellant urged that under Section 146 of the Criminal Procedure Code of 1973, an attachment of the subject of dispute could be effected in three situations : (i) if the Magistrate at any time after making the order under Section 145(1) considered the case to be one of emergency, or (ii) if he decided that none of the parties was then in such possession as was referred to in Section 145, or (iii) if he was unable to satisfy himself as to which of them was then in such possession of the subject of dispute. The attachment so effected, regardless of the situation consequent upon which it was effected, was to subsist until a competent Court determined the rights of the parties with regard to the person entitled to possession. This, he urged, clearly indicated that after an attachment was effected it was the Civil Court and not the Magistrate that was to have further jurisdiction in the matter. He contrasted the provisions of Section 146(1) of the present code with the provisions of Section 146(1) and the third proviso to Section 145(4) of the Criminal Procedure Code of 1898 as amended by Act 26 of 1955. He drew our attention to the circumstance that the third proviso to Section 145(4) of the old Code empowered the Magistrate, if he considered the case one of emergency, to attach the subject of dispute pending his decision under that Section, while Section 146(1) of the previous Code empowered the Magistrate to attach the subject of dispute if the Magistrate was of the opinion that none of the parties was then in possession or if the Magistrate was unable to decide as to which of them was in such possession and thereafter to refer to the Civil Court for decision the question whether any and which of the parties was in possession of the subject of dispute. Therefore, he said, under the previous Code, in the case of attachment because of emergency the Magistrate was himself competent to decide the question of possession and in the other two cases he was to refer the dispute to the Civil Court, whereas, under the present Code, in all the three situations the Magistrate was to leave the matter for adjudication by the Civil Court. Thus, the submission of Shri Mukherji was that while under the previous Code it was permissible to attach the subject of dispute pending enquiry by the Magistrate as contemplated by Section 145, such attachment pending decision by the Magistrate was not permissible under the provisions of the present Code. According to him so soon as the Magistrate effected an attachment he had nothing further to do except await the decision or the directions of the Civil Court.

3. Though at first blush there appeared to be force in the submissions of Shri Mukherji, a closer scrutiny of the provisions of Sections 145 and 146 exposes their unsoundness. It may perhaps be desirable, at this stage to extract the provisions of Sections 145 and 146, to the extent that they are relevant, in the Code of 1898 before it was amended in 1955, in the Code of 1898 after it was amended in 1955 and in the Code, of 1973 :

(a) (b) (c) 145 (1) Whenever a 145 (1) Whenever a 145 (1) Whenever an District Magistrate, District Magistrate, Executive Magis- Sub-divisional Sub-divisional trate is satisfied Magistrate or Magistrate or from a report Magistrate of Magistrate of of a police the first the first officer or class is class is upon other satisfied from satisfied from information a police- a police- that a report or report or dispute likely, other information other information to cause a that a dispute that a dispute breach of the likely to likely to peace exists cause a cause a concerning any breach of breach of land or the peace ex- the peace ex- water ists concerning ists concerning or the boundaries any land or any land or thereof, within water or the water or the his local boundaries boundaries jurisdiction, he thereof, within thereof, within shall make the local limits the local limits an order in of his of his writing, stating jurisdiction, he jurisdiction, he the grounds shall make shall make of his an order an order being in writing, in writing, so satisfied, stating the stating the and requiring grounds of grounds of the parties his being his being con- so satisfied, so satisfied, cerned in and requiring and requiring such dispute to the parties con- the parties con- attend his Court cerned in cerned in in person or such dispute such dispute by pleader, to attend his Court to attend Court on a specified in person or in person or date and time, by pleader, by pleader, and to put within time to be within a time to be in written state- fixed by fixed by ments of such Magistrate, such Magistrate their respective and to put in and to put in claims as respects written statements written statements the fact of of their respective of their respective actual possession of claims claims the subject as respects the as respects the of dispute. fact of actual fact of actual possession of possession of the subject the subject of dispute: of dispute and further requiring them to put in such documents, of to adduce, by putting hi affidavits, the evi- dence of such persons, as they rely upon in support of such claims. (2) .... (2) .... (3) A copy of (3) A copy of (3) A copy of the order the order the order shall be ser- shall be ser- shall be ser- ved in manner ved in manner ved in manner provided by provided by provided by this Code for this Code for this Code for the service the service the service of a summons of a summons of a summons upon such per- upon such per- upon such per- son or persons son or persons son or persons as the Magistrate may as the Magistrate may as the Magistrate may direct, and at direct, and at direct, and at least Qne copy least Qne copy least Qne copy shall be shall be shall be published by published by published by being affixed being affixed to being affixed to some cons- some cons- some cons- pieuous place pieuous place pieuous place at or near at or near at or near the subject of the subject of the subject of dispute. dispute. dispute. (4) The Magistrate (4) The Magistrate (4) The Magistrate shall then, without shall then, without shall then, without reference to the reference to the reference to the merits or merits or merits or the claims of the claims of the claims of any of such any of such any of such parties to a parties to a parties to a right to possess right to possess right to possess the subject of the subject of the subject of dispute, peruse dispute, peruse dispute, peruse the statements, the statements, the statements, so put in, hear documents so put in, the parties, and affidavits, hear the parties, receive all such if any, receive all evidence as may so put in, such evidence be produced hear the as may be by them, parties and conclude produced by them, respectively, the inquiry, take such consider the as far as may further evidence, effect of such be practicable, if any, as he evidence, take within a period thinks necessary, such further of two months and, if evidence (if from the possible, decide any) as he date of whether any thinks necessary, the appearance of and which of and, if poss- the parties be- the parties was, ible, decide fore him and, at the date of whether any if possible, the order and which of the decide the made by him parties was at question whether under Sub-section (1), the date of any and in possession the order before- which of the of the mentioned in parties was at subject such possession the date of of dispute : of the said the order before subject : mentioned in such possession of the said subject : Provided that.... Provided that... Provided that... Provided further that... Provided also that, Provided also that, if the Magistrate if the Magistrate considers the considers the case one of case one of emergency, he emergency, he may at any time may at any time attach the attach the subject of dis- subject of dis- pute, pending pute, pending his decision his decision under this sec- under this sec- tion. tion. (5) Nothing in (5) Nothing in (5) Nothing in this section this section this section shall pre- shall pre- shall pre- clude any clude any clude any party so party so party so required to required to required to attend, or attend, or attend, or any other any other any other person interested, person interested, person interested, from showing from showing from showing that no such that no such that no such dispute as dispute as dispute as aforesaid exists aforesaid exists aforesaid exists (a) (b) (c) or has existed; or has existed; or has existed; and in such case and in such case and in such case the Magis- the Magis- the Magis- trate shall trate shall trate shall cancel his cancel his cancel his said order, said order, said order, and all and all and all further further further proceedings proceedings proceedings thereon shall thereon shall thereon shall be stayed, be stayed, be stayed, but, subject but, subject but, subject to such to such to such cancellation, cancellation, cancellation, the order the order the order of the of the of the Magistrate Magistrate Magistrate under Sub- under Sub- under Sub- section (1) section (1) section (1) shall be final. shall be final. shall be final. (6) If the (6) If the (6)(a) If the Magistrate Magistrate Magistrate decides decides decides that one that one that one of the parties of the parties of the parties was or should was or should was or should under the under the under the first proviso 2nd proviso proviso to Sub-section (4) to Sub-section (4) Sub-section (4) be treated be treated be treated as being in as being in as being in such possession such possession such possession of the said of the said of the said subject, he shall subject, he shall subject, he shall issue an order issue an order issue an order declaring declaring declaring such party to such party to such party to be entitled to be entitled to be entitled to possession possession possession thereof until thereof until thereof until evicted evicted evicted therefrom in due therefrom in due therefrom in due course of law, course of law, course of law, and forbidding and forbidding and forbidding all disturb- all disturb- all disturb- ance of such ance of such ance of such possession until possession until possession until such eviction such eviction such eviction and when he and when he and when he proceeds under proceeds under proceeds under the first the first the first proviso to proviso to proviso to Sub-section (4), Sub-section (4), Sub-section (4), may restore to may restore to may restore to possession the possession the possession the party forcibly party forcibly party forcibly and wrong- and wrong- and wrong- fully fully fully dispossessed. dispossessed. dispossessed. (b) (7) ....... (7) ....... (7) ....... (8) ....... (8) ....... (8) ....... (9) ....... (9) ....... (9) ....... (10) ....... (10) ....... (10) ....... (146) (1) If the (146) (1) If the (146) (1) If the Magistrate Magistrate Magistrate descides is of opinion at any time that none of that none after making the parties of the parties the order under was then in such was then in such Sub-section possession, or possession, of (1) of Section 145 is unable to the subject of considers satisfy himself dispute, he the case to be as to which may attach it, one of emergency, of them was then and draw up or if he in such pos- a statement decides that session of of the facts of none of the subject of the case and the parties was dispute, he may forward the then in such pos- attach it until record of session as is a competent Court the proceeding to referred to on has deter- a Civil Court Section 145, or mined the rights of competent if he is of the parties jurisdiction to unable to satisfy thereto, or decide the himself as to the person question whether which of them was entitled to any and which then in such possession of the possession thereof : parties was of the subject in possession of dispute, of the subject of he may attach dispute at the subject of date of the order dispute until as explain- a competent ned in Sub- court, has section (4) of determined the Section 145; and rights of the he shall direct parties thereto the parties to with regard to appear before the person the Civil Court entitled to on a date to be the possession fixed by thereof : him : Provided that Provided that Provided that the District the District such Magistrate Magistrate or Magistrate or may with- the Magistrate the Magistrate draw the who has attached who has attached attachment at the subject the subject any time if he is of dispute may of dispute may satisfied that withdraw the withdraw the there is no longer attachment at attachment at any likeli- any time, if any time, if hood of breach of he is satisfied he is satisfied the peace that there is no that there is no with regard longer any longer any to the likelihood of likelihood of subject of a breach of the a breach of the dispute. peace in peace in regard to regard to the subject the subject of dis- of dis- pute. (1A) ....... (1B) ....... (1C) ....... (1D) ....... (1E) ....... (2) When the (2) When the (2) When the Magistrate Magistrate Magistrate attaches the attaches the attaches the subject of subject of subject of dispute, dispute, dispute, he may, if he he may, if he he may, if on thinks fit thinks fit receiver in and if no and if no relation to receiver of receiver of such subject of the property, the property, the dispute, has been subject of subject of appointed by dispute, dispute, any Civil has been has been Court, appointed by appointed by manke such any Civil Court any Civil Court arrangements as appoint a receiver appoint a receiver he considers thereof, thereof, proper for (a) (b) (c) who subject to who subject to looking after the control of the control of the property or the Magistrate, the Magistrate, if he thinks shall have all shall have all fit, appoint a the powers of the powers of receiver thereof, a receiver a receiver who shall appointed under appointed under have, subject the Code of the Code of to the control Civil Pro- Civil Pro- of the Magis- cedure. cedure. trate all the powers of a receiver appointed under the CPCs 1908 (5 of 1908) : Provided that, Provided that, Provided that in the event of in the event of in the event of a receiver a receiver a receiver of the property, of the property, being subsequently the subject of the subject of appointed in dispute, dispute, relation to being subsequently being subsequently the subject of appointed by appointed by dispute by any any Civil any Civil Civil Court, Court, possession Court, possession the Magistrate- shall be made shall be made over to over to him by the him by the receiver receiver appointed by the appointed by the Magistrate, who Magistrate, who shall thereupon shall thereupon be dis- be dis- charged. charged. (a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil. Court and shall thereafter discharge the receiver appointed by him; (b) may make such other incidental or consequential orders as may be just.

4. Quite obviously, Sections 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries. If Section 146 is torn out of its setting and read independently of Section 145, it is capable of being construed to mean that once an attachment is effected in any of the three situations mentioned therein, the dispute can only be resolved by a competent Court and not by the Magistrate effecting the attachment. But Section 146 cannot be so separated from Section 145. It can only be read in the context of Section 145. Contextual construction must surely prevail over isolationist construction. Otherwise, it may mislead. That is one of the first principles of construction. Let us therefore look at Section 145 and consider Section 146 in that context. Section 145 contemplates, first, the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists concerning any land or water or their boundaries, and, next, the issuance of an order, known to lawyers practising in the Criminal Courts as a preliminary order, stating the grounds of his satisfaction and requiring the parties concerned to attend his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. A preliminary order is considered so basic to a proceeding under Section 145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Sections 145 and 146. In fact, the first of the situations in which an attachment may be effected under Section 146 of the 1973 Code has to be 'at any time after making the order under Sub-section (1) of Section 145'' while the other two situations have, necessarily, to be at the final stage of the proceeding initiated by the preliminary order. Now, the preliminary order is required to enjoin the parties not only to appear before the Magistrate on a specified date but also to put in their written statements. Sub-section (3) of Section 145 prescribes the mode of service of the preliminary order on the parties. Sub-section (4) casts a duty on the Magistrate to peruse the written statements of the parties, to receive the evidence adduced by them, to take further evidence if necessary and, if possible, to decide which of the parties was in possession on the date of the preliminary order. If the Magistrate decides that one of the parties was in possession he is to make a final order in the manner provided by Sub-section (6). Provision for the two situations where the Magistrate is unable to decide which of the parties was in possession of where he is of the view that neither of them was in possession is made in Section 146 under which he may attach the subject of dispute until the determination of the rights of parties by a competent Court. The scheme of Sections 145 and 146 is that the Magistrate, on being satisfied about the existence of a dispute likely to cause a breach of the peace, issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements. Then he proceeds to peruse the statements, to receive and to take evidence and to decide which of the parties was in possession on the date of the preliminary order. On the other hand if he is unable to decide who was in such possession or if he is of the view that none of the parties was in such possession he may say so. If he decides that one of the parties was in possession, he declares the possession of such party. In the other two situations he attaches the property. Thus a proceeding begun with a preliminary order must be followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders. There is no half way house, there is no question of stopping in the middle and leaving the parties to go to the Civil Court. Proceeding may however be stopped at any time if one or other of the parties satisfies the magistrate that there has never been or there is no longer any dispute likely to cause a breach of the peace. If there is no dispute likely to cause a breach of the peace, the foundation for the jurisdiction of the magistrate disappears. The magistrate then cancels the preliminary order. This is provided by Section 145 Sub-section (5). Except for the reason that there is no dispute likely to cause a breach of the peace and as provided by Section 145(5), a proceeding initiated by a preliminary order under Section 145(1) must run its full course. Now, in a case of emergency, a magistrate may attach the property, at any time after making the preliminary order. This is the first of the situations provided in Section 146(1) in which an attachment may be effected. There is no express stipulation in Section 146 that the jurisdiction of the magistrate ends with the attachment. Nor is it implied. Far from it. The obligation to proceed with the enquiry as prescribed by Section 145 Sub-section 4 is against any such implication. Suppose a magistrate draws up a preliminary order under Section 145(1) and immediately follows it up with an attachment under Section 146(1), the whole exercise of stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements becomes futile if he is to have no further jurisdiction in the matter. And yet he cannot make an order of attachment under Section 146(1) on the ground of emergency without first making a preliminary order in the manner prescribed by Section 145(1). There is no reason why we should adopt a construction which will lead to such inevitable contradictions. We mentioned a little earlier that the only provision for stopping the proceeding and cancelling the preliminary order is to be found in Section 145(5) and it can only be on the ground that there is no longer any dispute likely to cause a breach of the peace. An emergency is the basis of attachment under the first limb of Section 146(1) and if there is an emergency, no one can say that there is no dispute likely to cause a breach of the peace.

5. Let us examine if a comparative study of the provisions as they stood, before 1955 and after 1955 under the old Code and as they now stand under the 1973 Code lead us to a conclusion other than that indicated in the preceding paragraph. From the comparative table of the provisions, it is seen that there were two principal changes made by the 1955 amendment. The first was that the preliminary order was also to require the parties to put in documents and the affidavits of such persons as they intended to rely upon in support of their claims. The magistrate was to decide the case on a consideration of the written statements the documents and the affidavits put in by the parties and after hearing them. The position earlier was that the parties had the right to adduce evidence and the magistrate could take further evidence if he so desired.The second change was that in the two situations where he was unable to satisfy himself as to which of the parties was in possession or where he decided that none of the parties was in possession, after attaching the property, the magistrate was himself to refer the dispute to the Civil Court instead of leaving it to the parties to go to the Civil Court. He was to obtain the finding of the Civil Court and thereafter conclude the proceeding under Section 145 Criminal Procedure Code in conformity with the decision of the Civil Court. The revised procedure introduced by the 1955 amendment was not found to work satisfactorily and, therefore, it was, apparently, thought desirable to revert to the old procedure. The provisions of Sections 145 and 146 of the 1973 Code are substantially the same as the corresponding provisions before the 1955 amendment. The only noticeable change is that the second proviso to Section 145(4) (as it stood before the 1955 amendment) has now been transposed to Section 146 but without the words 'pending his decision under this Section' and with the words 'at any time after making the order under Section 145(1)' super-added. The change, clearly, is in the interests of convenient draftsmanship. All situations in which an attachment may be made are now mentioned together in Section 146. The words 'pending his decision under this section' have apparently been omitted as unnecessary since Section 145 provides how the proceeding initiated by a preliminary order must proceed and end and therefore an attachment made at any time after making under Section 145(1)' can only continue until the termination of the proceeding. At the termination of the proceeding, if he finds one of the parties was in possession as stipulated, the magistrate must make an order as provided in Section 145(6) and withdraw the attachment as provided in Section 146(1) since there can be no dispute likely to cause a breach of the peace once an order in terms of Section 145(6) is made.

6. In our view, it is wrong to hold that the magistrate's Jurisdiction ends as soon as an attachment is made on the ground of emergency. A large number of cases decided by several High Courts some taking one view and the other a different view were read to us, We do not consider it necessary to refer to them except to acknowledge that we derived considerable assistance from the judgment of Lahiri, J., in Kshetra Mohan Sarkar v. Paran Chandra Mandal(l), in arriving at our conclusion. We may also add that the question now at issue did not arise for consideration in Chandu Naik and ,Ors. v. Sitaram B. Naik and Anr. (supra). What was decided there was that a proceeding under Section 145 Criminal Procedure Code did not abate because of Section 8 of the Maharashtra Vacant Land (Prohibition of unauthorised Occupation and Summary Eviction) Act, 1975. In the result the appeal is dismissed.


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