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Gulla Shah Vs. Mohd. AmIn Shah - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1975CriLJ621
AppellantGulla Shah
RespondentMohd. AmIn Shah
Cases ReferredAli Bagban v. Ghulam Mohi
Excerpt:
- .....that the case is one of emergency and such a full and complete satisfaction can come only if the party affected is also heard in the matter, though in a very summary fashion. in other words the position is that the proviso does confer power on the magistrate to make an interim attachment, but the said attachment is always subject to objections which may be filed by the affected party, if no objections are filed by the affected party or if the affected party does not contest the order of attachment, then the order passed toy the magistrate under the third proviso contains, an element of finality and lasts till the proceedings culminate in the fina] order under section 145(4). mr. chowdhury, however, submitted that if the (affected party is given the right to be heard in the attachment.....
Judgment:

Ali, C.J.

1. This application is directed against an order passed by the CJM Srinagar dated 30-4-74 as confirmed by his order dated 7-5-74. The petition arises in the following circumstances.

The non-applicant, Haji Mohd. Amin Shah approached the CJM with an application for initiating (proceedings under Section 145 Criminal P. C. with respect to the (property in suit which is the third storey of a house situate in Misuma Bazar, Srinagar. It was alleged by the non-applicants that they were carrying on business order the name and style of Public Boot House in the third storey of the house. It was further alleged by the non-applicants i. e. applicants before the court below that the petitioner in this revision petition namely. Gulia Shah, entered the premises and removed the goods belonging to the applicants before the court below and took. forciple possession of the third storey. I was thus prayed that as there was a .dispute between the parties resulting in a serious breach of the peace, proceedings under Section 145 may be initiated. It was also prayed in the application that as the casa wag one of emergency, the second fly-in-, i. e., the third storey of the house which constituted the disputed premises should be attached under Section 145(4). The Magistrate by his order dated 30-4-74 found that he was satisfied that there was a dispute with respect ho the premises between the parties which threatened ,a breach of the peace. He accordingly initiated proceedings under Section 145 and issued notice of the petitioners. The learned Magistrate has held that as he was satisfied that an emergency existed necessitating the attachment of the premises in dispute, attachment be made under the third proviso to Section 145. Subsequently it appears that before the attachment could be effected the petitioner moved an application before the learned Magistrate for keeping the order of attachment in abeyance as there was talk. of a compromise between the parties. The petitioner then prayed to the court that as a civil suit had been filed by him, the proceedings may be stayed. The learned Magistrate rejected the prayer and confirmed the order of attachment made by him on 30-4-74. Hence this revision in this court.

2. The petition was heard1 in the first instance by a single Judge of this court before whom Mr. T. Hussain counsel for the petitioner challenged the constitutionality of the third proviso to Section 145(4) of the Criminal P. C. as being violative of AlrtMes 14 and 19 of the Constitution of India. In view of this contention having been raised before the learned single Judge, he issued notice to the Advocate General to appear in the case and referred the case to the Chief Justice for placing it before a Larger Bench. That is how the case has come up before us.

3. In view of the points of law that have been urged before us. it is not necessary to go into the facts involved in the present case which is the function of the trial court. Mr. Hussain put forward three main contentions before us. In the first place he argued that the third proviso to Section 145(4) was violative of Article 19 of the Constitution of India inasmuch as the petitioner had been deprived of his property without a procedure established by law. Secondly it was contended that as the proviso confers wide, uncanalized and arbitrary powers on the Magistrate to attach any property and dispossess the real owner and no guidelines have been provided, the said provision is violative of Article 14 of the Constitution. Lastly it was submitted that even if the provision was constitutionally valid there was nothing in the third proviso to Section 145 to exclude the petitioner from filing objections to the order of attachment and from asking the court to recall it if it was satisfied that no emergency existed. The learned counsel conceded that if his argument on the third count succeeded then he would not press his arguments regarding 'the constitutionality of the third proviso to Section 145(4).

4-5. We have heard learned counsel for the parties at great length. Mr Chowdhury appearing for the nonapplicants submitted that Article 19 has no application to this 'case nor is the provision violaltive of Article 14 because it is a summary provision in order to prevent a breach of the peace. Lastly it was submittied that the third proviso to Section 145(4) gives only summary powers to the magistrate by way of a stop gap arrangement and there is no question of hearing the affected party either before or after the order under the third proviso to Section 145(4) is made, because that would amount to an inquiry within an inquiry.

6. Taking the first point raised by Mr. Hussain that the impugned provision is violative of Article 19 of the Constitution of India, we find absolutely no substance in this point. In the first place Article 19 will be attracted only when a .person's undisputed and indefeasible right to property is being infringed by a State action or a State law. In the instant case as the proceedings under Section 145 have been initiated, it must be presumed that a dispute exists between the parties which has catised a breach of the peace and therefore it cannot be said that the petitioner has got a perfect and indefeasible right to the property which is disputed in this case. Secondly Mr. Hussain relied upon certain observations of Fazl Ali J, (as he then was) in Gopalan's case : 1950CriLJ1383 wherein the learned Judge appears to have observed that Articles 21 and 19(1)(d) as also Article 19(6) of the Constitution of India were interlinked. The majority view was, however, contrary to this and Fazl Ali. J. had given a dissenting judgment in that case. On the basis of the dissenting judgment of Fazl Ali J. it was urged by the counsel for the petitioner that the right of liberty contained in Article 21 included the right to property and therefore the impugned provision is hit both by Article 21 and Article 19. Mr. Hussain further argued that the view taken by Fazl. Ali J. was accepted by the Supreme Court in : [1970]3SCR530 which is popularly known as the Bank Nationalization case. In the view, however, we take in this case. it is not necessary for us to dilate on this question. It may be sufficient to point out that even in his dissenting judgment Fazl Ali J. had not equated the right of personal liberty under Article 21 with the right to property under Article 19(1)(f) of the Constitution of India, What the learned Judge had held was that Article 21 and Article 19(1)(f) which gave a right to move freely throughout the territory of India were closely inter-linked and had to be read together. The majority view was that Article 21 and Article 19(1)(f) were mutually exclusive. The question whether any fundamental right to property was violated did not fall for decision in that lease at all which was really considering the constitutional validity of the Preventive Detention Act which directly related to the right to personal liberty;. In this connection Fazl AH J. had observed in Gopalan's case (Supra) at page 51 (of AIRJ) : (at p. 1407 of Cri LJ) as follows :

It is also argued that since preventive detention amounts to a total deprivation of freedom of movement, it is not a violation of the right granted under Article 19(1)(d) in regard to which 'restriction' and not 'deprivation' has been used in Clause (5), This argument also does not appeal to me. There are really two questions which fall to be decided in this case, viz., (la) Does preventive detention take away the right guaranteed bv Article 19(1)(d)? and (b) if so. what are the consequences. if any? It seems obvious to me that preventive detention amounts to a complete deprivation of the right guaranteed by Article 19(1)(d). The meaning of the word 'restriction' is to be considered with reference to the second question and I think that it will be highly technical to argue that deprivation of a right cannot be said to involve restriction on the exercise of the right. In my opinion having regard to the context in which the word 'restriction' has been used, there is no antithesis between that word and word 'Deprivation.

These observations would clearly show that the learned judge was only concerned with the right of personal liberty as contained in Article 21 and further amplified in Article 19 (ill (d). Even so far as security .proceedings including proceedings under Section 145 were concerned, the learned Judge had clearly mentioned that they were valid and they formed the very basis and background of our ancient law. In this connection the learned Judge (Fazl All J.) observed at page 60 of MR T at page 1416 of Cri LJ as follows:

The whole of the Criminal P. C whether it deals with trial of offences or with preventive or quasi-administrative measures such as are contemplated in Sec- tions 107, 108. 109., 110 and 145 is based upon the foundation of this principle, and it is difficult to see that it has not become part of the 'law of the land' and does not inhere in our system of law. If 'that is so. then procedure established bylaw' must include this principle, whatever, else it may or may not include.

These observations, therefore, knock the bottom out of the argument put forward by Mr. Hussain. In R. C. Cooper v. Union of India : [1970]3SCR530 a Constitution Bench of the Supreme Court after reviewing 'the earlier authorities on the subject observed as follows:

We have carefully considered the weighty pronouncements of the eminent judges who save shape to the concept that the extent of protection of important guarantees such as the liberty of person, and right to property, depends upon the form and object of the State action, and not upon its direct operation upon the individual's freedom, But it is not the object of the authority making the law impairing the right of a citizen, nor the form of action taken that determines the protection he can claim: it is the effect of the law and of the action upon the right which attract the jurisdiction of the court to grant relief. If this be the true view and we think it is. in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the legislature nor by the form of the action, but by its direct operation, upon the individuals rights.

For 'these reasons, therefore, the first argument put forward by the learned counsel for the petitioner is rejected.

7. It was then (contended that the impugned provision is violative of Article 14 of the Constitution of India inasmuch as the statute confers a wide and un-canalized Power on the magistrate to attach property merely on the application of one party without hearing the other. We are. however, unable 'to agree with this /Contention. In the first place the scope of proceedings under Section 145 is extremely limited. The proceedings are initiated only when there is breach of the 'peace and a summary procedure has been (provided by the court in public interest to prevent breaking of heads and disputes of property resulting in violence. Section 145 itself contains a clear mandate that the proceedings should be decided within two months as far as practicable. The order passed under Section 145 is not a final one but is subject to the decision of the civil court. A revision also lies to this Court against the order passed by the magistrate under Section 145. Furthermore Section 145(4) excludes the jurisdiction of the magistrate to deal with Questions of title and the magistrate under this section is directed only to decide tine proceedings with respect to the merit or the claim of the parties without any reference to their right Finally even though the proceedings are of an extremely summary nature, the various sub-sections of Section 145 incorporate the rules of natural justice and a full right is given to the affected party which is entitled to file the written statement, contest the claim of the applicant and file documents or affidavits In support of its claim and even to lead! evidence; if necessary. In these circum9-tances it cannot be said that Section 145 is violative of Article 14 of the Constituent of India. So far as the third proviso Ibo Section 145(4) is concerned, it is only a part and parcel of the other provisions which regulate the procedure for an Inquiry in a proceeding under Section 145. The third proviso to Section 145(4) runs thus:

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.

It is true that this proviso gives a wide discretion to the magistrate to attach the subject of dispute,, but this discretion is circumscribed by two important conditions: 1) that 'the case must be proved to before of emergency; and 2) that the Magistrate must be satisfied that a fit case for attachment has been made out. These guidelines are sufficient to prevent any exercise of arbitrary power by the Magistrate. Thus the provisions of Section 145 appear to be a class toy 'themselves and therefore can be justified on the basis of reasonable classification having nexus to the object of the statute, namely, to prevent disputes which may result in violence. For these reasons we overrule the contention of the counsel for the petitioner that the impugned provision is violative of Article 14 of 'the Constitution of India, i

8. This brings us to the last contention raised by the counsel for the petitioner, namely, 'that the impugned provision does not debar the affected party from objecting to the attachment and asking the court to recall its order of attachment if it proved to the satisfaction of the Court that no emergency exists. We have given our anxious consideration to this argument and we find that it is well founded and must prevail. An examination of the scheme of Section 145 shows that the entire procedure therein contains the principles of natural justice at every stage. The right of hearing the affected party, the right to lead evidence documentary or oral, and the right to hear that parties before giving the judgment is contained in Sub-sections (1). (3h (4) and (5). The provisions of Section 145 also porvide that where no dispute exists the proceedings can be dropped. If, therefore the intention of the statute was to lav down special safeguards to protect the right of the affected party, it will not be reasonable to infer that for purposes of the 'third (Proviso all the principles of natural justice were excluded. On the other hand the third proviso being itself one of the provisions contained in Section 145 it must have all the trappings and qualities of the main provision. It is true 'that the third proviso comes into effect only when an emergency exists. but that toy itself does not show that it prevents the magistrate from hearing the affected party or from recalling his order if the court is satisfied that no emergency exists. It seems to us that the word 'considers' in the third: proviso is strong enough to suggest that the magistrate must be fully satisfied that the case is one of emergency and such a full and complete satisfaction can come only if the party affected is also heard in the matter, though in a very summary fashion. In other words the position is that the proviso does confer power on the magistrate to make an interim attachment, but the said attachment is always subject to objections which may be filed by the affected party, If no objections are filed by the affected party or if the affected party does not contest the order of attachment, then the order passed toy the magistrate under the third proviso contains, an element of finality and lasts till the proceedings culminate in the fina] order under Section 145(4). Mr. Chowdhury, however, submitted that if the (affected party is given the right to be heard in the attachment matter, then it would amount to an inquiry within an inquiry. We are. however, unable 'to appriciate this arguument because the impugned provision itself contemplates that 'the magistrate must be fully satisfied that an emergency exists, and if for that purpose a summary inquiry has to be made, that will not destroy, diminish or efface the cognizance of proceedings under Section 145. On the other hand that will be in consonance with the spirit and tenor of the statutory provisions contained in Section 145. It is obvious that if the magistrate is to be. fully satisfied of an emergency, he must have both sides of the picture before him; otherwise it will give a handle to any party to play fraud. On the court by falsely showing his supposed right or possession and get an order of attachment from the magistrate and thereby dispossess the real and 'true owner of the property. Surely such a contingency could not have been 'contemplated! by the legislature when the statutory provisions of Section 145 themselves contain the principles of natural justice at every stage. It is now well-settled that in view of the strong language used in the third proviso to Section 145 orders of attachment should not be passed by the magistrates as a matter of routine. They are matters of moment because they are likely to cause serious damage to the affected party. The sine qua non for the application of the impugned provision is that an emergency must exist and the magistrate has got to apply his mind to the facts and not merely to use the language of the section in his order. The magistrate must give cogent reasons why he is satisfied that an emergency exists and that a party wants to get an order of attachment made as a special case or proving a special equity in his favour. Although there is a statutory mandate that the proceedings have to be terminated within two months as far as practicable yet it is common, knowledge that these proceedings are nro-trateted and extend from one to three years. The legislature was obviously aware of this contingency and that is why the words 'as far as practicable' were added before prescribing the period of two months.

9. Reliance was placed by Mr. Chowdhury on a single Bench decision of this Court in Ali Bagban v. Ghulam Mohi-Ud-Din AIR 1965 J & K 69 : (1965 (2) Cri LJ 209k wherein Bhat J. observed that once an attachment had been effected by e magistrate, he had no jurisdiction to set it aside unless he cancelled the preliminary order. In this connection the learned Judge observed as follows:

The learned Sessions Judge is not right in stating that on the presentation of the application by Ali Bagban for cancellation of the proceedings, the magistrate should have stayed the order of attachment. There is no such provision in the Criminal P. C. Once an attachment has been effected by the magistrate under Section 145 of the Code, he has no -jurisdiction to set it aside unless he cancels the preliminary order under the provisions of Section 145(4) or decides the entire proceedings finally. Therefore much that has been said by the learned S. J. in this case has to be ignored.

In the first place we need not read these observations as an authority for the proposition that the third proviso to Section 145 completely excludes the power of the magistrate to cancel the attachment if he Is satisfied that no emergency exists. Secondly there is nothing to show from the tects of that case that the affected party had put forward any objections and (prayed that the order of attachment should be cancelled. The learned Judge was not at all alive to this aspect of the matter which has been discussed by us. Even assuming that the learned Judige purported to decide that an ex parte order under the third proviso to Section 145 would enure until the proceedings are terminated finally and that the magistrate had no power to recall his order at any previous stage, for the reasons that we have already given above we find ourselves unable to agree with these observations and overrule the same and hold that the case was not correctly decided on this point. We might emphasize that the words 'pending his decision under this section' do not have the effect of excluding the right of the affected party to file objections but merely indicate Ihe finality of the order of attachment if passed and made absolute either after hearing objections or where it is not contested.

10. In these circumstances a careful perusal of the third proviso to Section 145(4) clearly reveals that the following conditions must be satisfied before on interim order of attachment can be passed;-

(1) That the magistrate must be satisfied and should give cogent reasons for (his satisfaction that a case for attachment has been made out.

(2) That sufficient grounds must be made out to show that a real emergency, exists. :

(3) That an order Passed1 under Section 145 ex party is subject to any objections and exceptions which may be taken !by the affected party, and if the affected party by an application is able to show that no case for attachment has been made out or no case exists as alleged by one party, the magistrate will be within his jurisdiction to cancel the older of attachment It is well settled that any court which has the power to pass an order has an inherent power to recall it ex debito justice. At the same time it may be pointed out that if an objection is filed by the affected party opposing the attachment, the inquiry must be a very sumra-arv one and would1 be similar to the one on the basis of which the magistrate initiates proceedings under Section 145 and passes 'the preliminary order and should not be allowed to be a sort of a protracted! thing. What is required is that 'the Magistrate should be prima facie satisfied whether or not a real emergency exists: the satisfaction may come merely from the application or the facts stated therein or from an affidavit or other important documents filed by the party concerned and so on.

Applying these principles to the facts of the present case we find' that the learned CJM in passing the order of attachment has acted in an extremely routine manner and has hardly given any reasons to disclose his satisfaction or to hold that a real emergency exists. Furthermore when the petitioner appeared before the court to oppose the attachment, he should have been given an opportunity to show that no case for attachment had been made out which , has been denied to him.

11. For these reasons the petition is allowed. and the order of the CJM dated 7-5-74 confirming the attachment made under Section 145 is set aside. The ordter of interim attachment dated 30-4-74 will continue but will be subject to objections taken by the petitioner, Parties are directed to appear before the court below on 12-9-1974.

Mufti Baha-Ud-Din, J.

12. I agree, I would however, like to add a few words in regard to the import and content of third proviso to section 145(4). Criminal P. C That proviso reads:

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.

Clearly the proviso empowers the Magistrate to make an order of attachment pending his decision under the section only if he considers that the case is one of emergency. Consideration means the application of mind. It is difficult to infer such application unless the mind is disclosed. Disclosure implies giving reasons. The Magistrate cannot obviously give reasons for his (conclusion unless he has before him all the aspects of the problem. He cannot have all the aspects before him unless he has heard all the parties affected by the problem. In terms, therefore), the proviso requires 'that a Magistrate should make an order of attachment after hearing the parties and that the order should be a speaking order setting out the material in support thereof and the reasons for his conclusion. This is all the more important before the order is subject to revision. The revisional court and equally so the aggrieved party must know what was the material before the Magistrate and what considerations entered his mind in coming to 'the conclusion that the case was one of emergency. Then alone can the aggrieved party demonstrate that the order was improper or perverse and the revisional authority will be able to keep the Magistrate within bounds. On general /principles too 'these requirements mav be inferred from the fact that an order made under this proviso has far-reaching consequences on the rights of the parties and if such requirements are not insisted upon, the exercise of such power may sometimes turn out to foe an instrument of the abuse of such power, particularly so because the order is to remain operative till the conclusion of the main case which might at times take years.

13. Cases are conceivable which' cannot brook delay involved in the service of the notice on the affected party-In such cases the Magistrate cannot be said to be powerless. He can make an ad interim attachment ex parte and simul- taneously Issue notice to the affected party to show cause why the order should not be made absolute and thereafter after hearing the objections and considering the matter in all details he can either confirm the order of attachment or vacate it. Doing so would not do any violence to the proviso which insists on hearing when the order of attachment is intended to be absolute in the sense that it will be operative till the termination of the proceedings under the section and not when it is intended to be provisional in the sense that it will be effective only till the affected party has been heard in the matter. However, when once the order has been made absolute, the Magistrate will not be competent to vacate it as long as the proceedings are not dropped and the preliminary order set aside bv him.


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