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Shamlal/Kallomal Vs. State Etc. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 336 of 1977
Judge
Reported in1979RLR156
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145
AppellantShamlal/Kallomal
RespondentState Etc.
Excerpt:
.....1973 - it was held that the magistrate must record reasons for his satisfaction of any likely breach of peace on account of property in question and also the necessity to initiate the proceedings - further, in the absence of reasons in writing indicating his satisfaction, the order was illegal.b) the case examined the preconditions for the attachment of property of section 146 of the criminal procedure code, 1973 - it was held that the magistrate before passing the order of the attachment must satisfy himself about the likelihood of breach of peace between the parties and also the emergency requiring him to pass such order - thereforee, the order passed without recording reasons warranting such conclusion was illegal and liable to be set aside. - - ' (3) saction 145(1) of the code..........and was entitled to occupy premises and to goods bying in the same and that there was a danger to breach of peace. the reports were submitted to the s d.m. on the basis of first report he made an order on 1.10.77, summoning the parties for filing w/ss on 6.10.77. on the basis of 2nd report he madeanorderon5.10.77, attaching the propenty u/s 146(1) for the reason that there was apprehension of breach of peace. on 1. 10.77, respondent 2 made an application to s.d.m. saying that possession of dispute property was with them and they be made a party in the case, relying on hakim singh v. girdhar singh 1975. rajdhani l.r. 507, this application wasrejectedon26.10.77. (after giving above facts, judgment para 7 onwards is) 157 1979 rajdhani law reporter 156 158 (2) feeling aggrieved by the.....
Judgment:

Prithvi Raj, J.

(1) Petitioner filed a report with the Police on 26.9.77, that he had let out disputed property to one Radha Rani who had died issueless and her relations were trying to illegally give the premises to Respondent 2. On 3.10.77, a similar report was made by one C.L. Khanna claiming that he was adopted son of husband of Radha Rani and was entitled to occupy premises and to goods bying in the same and that there was a danger to breach of peace. The reports were submitted to the S D.M. On the basis of first report he made an order on 1.10.77, summoning the parties for filing W/Ss on 6.10.77. On the basis of 2nd report he madeanorderon5.10.77, attaching the propenty u/s 146(1) for the reason that there was apprehension of breach of peace. On 1. 10.77, Respondent 2 made an application to S.D.M. saying that possession of dispute property was with them and they be made a party in the case, Relying on Hakim Singh v. Girdhar Singh 1975. Rajdhani L.R. 507, this application wasrejectedon26.10.77. (After giving above facts, judgment para 7 onwards is) 157 1979 Rajdhani Law Reporter 156 158

(2) Feeling aggrieved by the aforesaid orders of the S D.M M/s. Chiranji Lal Chander Bhan filed a revision petition in the court of the Sessions Judge, Delhi. The revision petition was heard by Shri T, Oberai, Additional Sessions Judge, Delhi, who passed the impugned order setting aside the orders dated 1,10.77 and 5.10.77 passed by the learned S D.M. as also his subsequent order dated 26.10.77 passed on the application of Chiranji Lal Chander Bhan directing the 'possession of the disputed premises (in question) shall be restored to the party with whom the possession vested at the time of attachment.'

(3) Saction 145(1) of the Code envisages that whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. A bare perusal of this Section reveals that an order in writing is to be passed by an Executive Magistrate on being satisfied from a report of a police officer or upon other information and the satisfaction has to be that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within the local jurisdiction of the Executive Magistrate and upon such satisfaction alone the Executive Magistrate is competent to make an order u/s 145(1). Not only this the Executive Magistrate has to state the grounds of his being satisfied It is then and then alone that he can pass an order as envisaged by Section 145(1) of the Code requiring the parties concerned to attend his court in person or by pleader, on a specified date and time, and put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute. I have perused the order dated 1.10,77 passed by the learned S.D.M. U/S 145(1) of the Code. Except for making a bare mention of the fact that it appeared to him from the report dated 27.9.77 sent by the S.H.O. Police Station Lahori Gate, that a dispute likely to cause breach of peace existed between the parties, mentioned in the order, he had not stated in the order the grounds on which he felt satisfied for making the impugned order. The order accordingly is not in consonance with the provisions of law. Section 145(1) does not authorise an Executive Magistrate to initate proceedings merely on the strength of a complaint or police report or other information stating that there is the like hood of breach of peace in respect of a dispute regarding the possession of an immovable property. It is only on being satisfied that a real dispute exists concerning the possession of an immoveable property and that such dispute is likely to cause a breach of the peace that the Executive Magistrate is competent to pass an order U/S 145(1) stating his reasons in writing for his satisfaction. This having not been done the order in question was, thereforee, rightly set aside by the Additional Sessions Judge.

(4) Not only that the learned S.D.M. chose to pass an order on 5.10 77 attaching the property in dispute without waiting for written statements from the parties of their respective claims as respects the facts of actual possession of the subject of dispute. The S.D.M. had required the parties to put in appearance before him 6.10.77 and without waiting for the written statements of the parties, passed the order dated 5.10 77 attaching the property in question on the mere report of the S H 0. Section 146(1) of the Code prescribes that if the Magistrate at any time after making the order u/s 145(1) considers the case to be one o,f emergency, or if he decided that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of 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. The Executive Magistrate, no doubt, any time after making the order u/s 145(1) of the Code can pass an order attaching the subject of dispute but he can do so in either of three cases : (1) If he considers the case to be one of emergency ; (2) if he decides that none of the parties was then in such possession as is referred to in section 145 of the Code ; (3) or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute. In the instant case the Executive Magistrate had not decided that none of the parties was (hen in possession as is referred to in Section 145 of the Code. Neither he has stated that he was unable to satisfy himself as to which of them was in possession of the subject of dispute. He had chosen to pass the order attaching the property considering the case as one of emergency. Before passing the orders for attachment he had to satisfy himself whether the case was one of emergency requiring him to pass the impugned order dated 5-10.77 The learned S.D.M. appear to have acquiesced in the subsequent report dated 3.10.77, filed by the S.H.O. in which the police has broadly stated that there was a danger of the breach of peace at any time between the parties. Except for a bare recital in the report the police had not given .reasons warranting such a conclusion. Notwithstanding acrimonious nature of the dispute between the parties what was required to be considered was whether there was a danger of immediate breach of peace rendering the case to be one of emergency warranting an order of attachment being passed. The S.D.M. while passing the order dated5.10.77 attaching the property had not gone into this aspect of the matter and had not stated any reasons as to why he considered the case to be one of the emergency necessiating the order attaching the property u/s 146(1) of the Code was, thereforee, rightly set aside.

(5) For the reasons stated above, revision is allowed. The matter is however, remanded to the S.D.M. to apply his mind afresh and to dispose of the matter in accordance with the provisions of the Code.


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