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Umrao Vs. SheonaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 301 of 1974
Judge
Reported in1975(8)WLN487
AppellantUmrao
RespondentSheonaraIn and ors.
Cases ReferredGhulam Sha v. Nasuruddin
Excerpt:
.....145, crpc. trbrewal further contended that under the proviso to sub-section (1) of section 146, crpc a magistrate can raise an attachment whenever he is satisfied that likelihood of a breach of peace no longer exists. tibrewal on this point, because on the making of an order that there is no longer any likelihood of a breach of the peace with regards subject of dispute, the proceeding under section 145, criminal procedure code itself comes to an and the position of the parties is precisely the same as if no proceedings had been initiated at all under section 145 crpc in such circumstances a magistrate has jurisdiction to pass an order raising an attachment but this does not mean that the order of attachment passed by him in case of emergency is an interlocutory order, because the..........order.8. mr. trbrewal further contended that under the proviso to sub-section (1) of section 146, crpc a magistrate can raise an attachment whenever he is satisfied that likelihood of a breach of peace no longer exists. according to him, in view of the proviso, no finality is attached to an order of attachment under sub-section (1) of section 146, crpc i am unable to subscribe to the view of mr. n.l. tibrewal on this point, because on the making of an order that there is no longer any likelihood of a breach of the peace with regards subject of dispute, the proceeding under section 145, criminal procedure code itself comes to an and the position of the parties is precisely the same as if no proceedings had been initiated at all under section 145 crpc in such circumstances a magistrate.....
Judgment:

K.D. Sharma, J.

1. This is an application in revision filed by Umrao, herein after referred to as party No. 1, along with his real brothers, Kanhi Ram, Mohar Singh, and Sube Singh, against an order of the Sub-Divisional Magistrate, Khetri, dated 12-7-1974, in a proceeding under Section 145, CrPC whereby the disputed land coverred by Khasra Nos. 2 measuring 9 Bighas 15 Biswas, 8 Measuring 3 Bighas 4 Biswas, 19 Measuring 4 Bighas 10 Biswas and 21 measuring 4 Bighas 5 Biswas and situated in Dhani Khatoti village Sator was attached under S 146, Criminal Procedure Code. 1973, after drawing preliminary order containing the grounds on which the Sub Divisional Magistrate was satisfied that a dispute likely to cause breach of peace exists between the party No. 1 and party No. 2 concerning the land in dispute.

2. The relevant facts giving rise to this revision-petition may be briefly stated as follows : The disputed land consists of four Khasra numbers measuring 21 Bighas and 14 Biswas in toto. The land is situated in Dhani Khaicti village Sator and was recorded in the revenue records in the Khatedari of Bagta deceased. After the death of Bagta on 17-2-1965, a mutation order was parsed in respect of this land in favour of his four sons, namely, Umrao, Mohar Singh Kanhi Ram and Hazari on 18-3-1965. The said mutation order was given effect to and the names of the above names four sons of Bagta were entered in the column of Khatedars in Jamabandi records of Samvat 2025 to 2029. Apart from this, a pass book of these Khasra numbers was also issued by the Revenue authorities to Umrao and his Shree brothers on 10-7-1973. In this manner, party No. 1 Umrao and his three brothers have been in peaceful possession of the land in dispute and have been paying the rent thereof to the Revenue Department. Sheonarain and Surja Ram members of party No. 2, who are sons of Richhpal claimed to be the sons of Bagta and on the basis of their claim got a new pass book issued from the Revenue authorities in respect of the subject of dispute on 1-6-1974 without any notice to party No. 1 Umrao and his brothers. The new pass book was obtained by Sheonarain and Surja Ram during the pendency of a suit for division of holdings which they have instituted in the court of the Sub-Divisional Magistrate, Khetri, on the ground that they also were the sons of Bagta. After obtaining the new pass book, Sheonarain and Surja Ram alias Suraj Bhan made a report to the Station House Officer, Bhunana, that there exists a dispute likely to cause breach of peace between them and party No. 1 to respect of the possession of the land in dispute and that necessary action should be taken. The Station House Officer, Bhunana, made a report to she Sub Divisional Magistrate, Khetri, on 11-7-1974, about the existence of a dispute likely to cause breach of peace in respect of the land. He further reported that the case was one of emergency and that the land in dispute should be attached so as to prevent the parties from disturbing the peace. The Sub Divisional Magistrate drew up a preliminary order on 12-10-1974 stating the grounds of his being satisfied that a dispute likely to cause breach of peace existed in respect of the land and requiring the parties concerned in the dispute to appear before him and to file written statements of their respective claims as respects the actual possession of the land in dispute. After passing the preliminary order, the learned Magistrate passed an order for interim attachment of the land under Section 146, CrPC because in his opinion it was a case of emergency. By the same order, he appointed the Naib Tehsilder, Khetri, to be the receiver of the land after its attachment. Aggrieved by this order, Umrao has come up in revision to this Court.

3. Notice of this revision petition was given to the non petitioners and the record of the lower court was called for. Mr. N.L Tibrewal appeared on behalf of party No. 2 and contested the application in revision.

4. Before arguments were advanced on the merits, a preliminary objection was raised by the learned Counsel for the non-petitioners i.e. party No. 2 that the revision petition cannot be entertained against the impugned order as it is an order of an inter locutory nature Mr. Tibrewal invited my attention to the provisions contained in Sub-section (2) of Section 397 Cr.P.C. and contended on their strength that the powers of revision conferred by Sub-section (1) of Section 397, CrPC cannot be exercised in relation to an interlocutory order passed in any proceeding. He relied upon an authority of this Court-Dhola v. The State 1975 RLW 22, wherein an interlocutory order has been defined as one which is passed at some inter-medlary stage of a proceeding and which is incidental to the principal object of the action, namely, final determination of the rights of the parties.

5. Mr. P.N. Datt, on the other bind, argued that the impugned order does not fall within the purview of interlocutory orders after the commencement of the new Code of Criminal Procedure and that it is final order in the sense that the attachment order passed under Sub-section (1) of Section 145, CrPC is to continue until a competent court has determined the rights of the parties to the subject of dispute with regard to the person entitled to the possession thereof and that once such an order has been passed, the proceedings under Section 145, CrPC must come to an end.

6. I have considered the rival contentions. At the outset it may be observed that under the old Code of Criminal Procedure, 1898, the Magistrate was empowered to attach the subject of dispute in case of emergency in exercise of his powers conferred by the third proviso to sub Section (4) of Section 145, CrPC, which reads as follows:

Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.

The order of attachment in case of emergency subsisted tall the Magistrate had passed a final order under Sub-section (6) Section 145 unless he cancelled the preliminary order under Sub-section (6) of Section 145, CrPC. The wordings 'pending his decision under this section' in the third proviso to Sub-section (4) of Section 145 of the Old Code clearly indicated that an attachment of the subject of dispute did not subsist after the Magistrate has decided the entire proceedings finally. In he proviso quoted above, the interim attachment could not be made to continue until the rights of the parties to the land in dispute with regard to the person entitled to the possession thereof has been determined by a competent court. Hence under the old Code the order of attachment was clearly an in erlocuto(sic)y order made in the case of emergency during the pendency of the proceedings under Section 145, CrPC. But after the commencement of the new Code there is a change in the legal position because under the new Code the provision of attachment in case of emergency contained in Section 145, CrPC has been incorporated in Section 146, CrPC. Now the Magistrate can attach the property indefinitely until such time as the competent court has decided the rights of the parties to the subject of dispute with regard to the person entitled to the possession thereof. The main object of the attachment of the land in dispute under Section 146, CrPC, in case of emergency is to keep the property in custodia legis in order to prevent the conresting party from resorting to the breach of the peace in their efforts to obtain the actual possession thereof. As soon as the land is attached in a case of emergency and the property is kept in the custody of the Court, the said object is achieved and, in my humble opinion, the proceedings under Section 145, CrPC should come to an end, because the attachment is made to subsist until the claim of the patties to a tight to possess the subject of dispute is determined by a competent court.

7. Looked from another aspect also, the legal position appears to be the same. 11 after attaching the subject, of dispute in a case of emergency under Sub-section (1) of Section 146, CrPC the Masgistrate makes a proper inquiry into the question of possession and decides that one of the parties was or should under the proviso to Sub-section (4) of Section 145, CrPC be treated as being in possession of the subject of dispute he shall declare the possession of such party and when be proceeds under the proviso to Sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed. But after once having attached the subject of dispute in a case of emergency, he cannot restore to possession the party in whose favour he passes the final order under Sub-section (6A) of Section 145, CrPC, because the attachment shall continue until such time as a competent court has decided the tights of the parties to the subject of dispute. It will not be cut of place to mention that the Magistrate is not a competent court because he is required under the law to decide the question of possession with but reference to the merits of the claims of any of the parties to a right to possess the subject of dispute. Hence after attachment of the subject of dispute in case of emergency under Sub-section (1) of Section 146, CrPC a proper inquiry into the question of possession as envisaged by Sub-section (4) of Section 145, CrPC is of no use, because even after passing a final order under Sub-section (6A) of Section 145, CrPC an attachment has to be continued until determination by a competent court of the rights of the parties to the subject of dispute with regard to the persons entitled to the possession thereof. In this view of matter the impugned order passed by the Sub-Divisional Magistrate, Khetri, attaching the land in dispute on the ground of emergency under Section 146, CrPC is final order.

8. Mr. Trbrewal further contended that under the proviso to Sub-section (1) of Section 146, CrPC a Magistrate can raise an attachment whenever he is satisfied that likelihood of a breach of peace no longer exists. According to him, in view of the proviso, no finality is attached to an order of attachment under Sub-section (1) of Section 146, CrPC I am unable to subscribe to the view of Mr. N.L. Tibrewal on this point, because on the making of an order that there is no longer any likelihood of a breach of the peace with regards subject of dispute, the proceeding under Section 145, Criminal Procedure Code itself comes to an and the position of the parties is precisely the same as if no proceedings had been initiated at all under Section 145 CrPC in such circumstances a Magistrate has jurisdiction to pass an order raising an attachment but this does not mean that the order of attachment passed by him in case of emergency is an interlocutory order, because the attachment of the subject of dispute does not automatically cease upon there having been no longer any likelihood of a breach of peace. The wordings 'may withdraw attachment at any time' clearly indicate that the Magistrate had a discretion to pass an order raising an attachment whenever he is satisfied that there is no longer any apprehension of breach of peace. The discretion of course has to be exercised in a judicial manner. Likewise the provisions that in the event of a receiver being subsequently appointed by any civil court in relation to the subject of dispute the Magistrate shall hand over the possession thereof to the receiver appointed by the civil court and discharge the receiver appointed by him do not change the complexion of the order passed under Sub-section (1) of Section 145, CrPC and do not make it essentially an inter-locutory order. It appears that this provision is inserted in the new Code in order to avoid conflict of jurisdiction because it is obviously undesirable that two receivers are appointed by different courts to take possession of or exercise any control over the same properties Hence the preliminary objection raised by Mr. Tibrewal is overruled and it is held that the order being not an interlocutory order is revisable by the Court under Section 397 read with Section 401, CrPC On merits, it has been contended before me by the learned Counsel for the petitioners that even if the claim of party No. 2 is accepted on the face of it as true, it amounts to a claim regarding undivided share in the disputed land and the Sub Divisional Magistrate had no jurisdiction to institute proceedings under Section 145, CrPC in such cases as the dispute was between co-Khatedar tenants regarding joint possession of the subject of dispute. In support of his above contentions, the learned Counsel for the petitioner has placed reliance on Nahar Singh v. The Sate wherein it has been observed that that no declaration of joint possession can be made under Section 145, CrPC Mr. Tibrewal on the other hand, argued that in the instant case there is no material on the record to show that party No. 2 has put forward a claim for joint possession of the land in dispute According to his submission party No. 1 claims exclusive possession over the land in dispute being only four sons of Bagta while party No. 2 claims to be in possession of their share of the land in depute and, therefore, it is a question of disputed possession and does not fall out of the purview of Section 145, CrPC.

9. I have given my anxious consideration to the above contentions. As stated earlier, the learned Sub Divisional Magistrate, Khetri, has initiated proceedings under Section 145, CrPC on the basis of a report made to him by the Station House Officer, Bhunana on 11-7-1974. It appears from the record that the Station House Officer made an inquiry into the matter upon an application presented to him by Sheonarain and Surja members of party No. 2 In this application, it is clearly stated that the applicants are six brothers, namely, Sheonarain, Surja, Umrao. Kanhi Ram, Sube Singh and Hazari and that they are cultivating the land in dispute jointly and that when Sheonaran and Surja Ram try to cultivate the land, Umrao, Mohar Singh, Kanhi Ram etc prevent them from cultivating it and are determined to beat them and so necessary action should be taken to the matter. It appears that the Station House Officer recorded the statements of Sheonarain, and Surja Ram during the course of inquiry in which they stated that Umrao and Mohar Singh refuted to divide the land although their father Bagta promised them to partition the land after the marriage of his son Hazari and his daughter. The learned Sub Divisional Magistrate also did not state in the preliminary order that party No. 2 was in actual possession of a specific portion of the property or some particular Khasra and that party No. 1 was in possession of the rest. He merely reproduced the contents of the report in his own language without ascertaining the true nature of the dispute Consequently, I am of the view that the learned Sub-Divisional Magistrate had no jurisdiction to institute proceedings under Section 145, CrPC in such cases as according to party No. 2 itself the dispute is between co- khatedars relating to possession of an undivided share in the entire land under controversy. A similar view has been taken in Ghulam Sha v. Nasuruddin AIR 1964 J. & K. 1. The proper order would have been to take action against the parties under Section 107, or Section 144, CrPC, as she case might be. in this view of the matter, the learned Sub Divisional Magistrate could not pass an order ft the attachment of the land in dispute under Section 146, CrPC, because proceedings under Section 146, are in constitutions of those under Section 145, CrPC and powers under this section cannot be exercised independently of it.

10. For the foregoing reasons, the revision-petition is accepted and the impugned order dated 12-7-1974 pissed by the learned Sub-Divisional Magistrate, Khetri, containing toe preliminary order and the order of attachment of the land in dispute is set aside.


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