MATHURALAL Vs. BHANWARLAL

JUDGEMENT

(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 S. 145 (1) of the Code of Criminal Procedure 1973, on 1/03/1978. ON 2/03/1978, the learned Magistrate attached the subject of dispute under S. 146 (1) Criminal Procedure Code considering the case to be one of emergency. Thereafter, when the learned Magistrate wanted to proceed with the enquiry under S. 145 Cr. P. C., an objection was raised by Mathuralal that such an enquiry was incompetent once the subject of the dispute had been attached under S.146 Cr. P. C. The objection was overruled by the learned Magistrate. Successive Revision taken before the Sessions Judge and the High Court having borne no fruit, Mathuralal 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 v. Sitaram B. Naik, (1978) 2 SCR 353 : 1978 Cri LJ 356.

(2.) SHRI Mukherji, learned counsel for the appellant urged that under S. 148 of the Cr. P. C. 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 S.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 S. 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 S. 146 (1) of the present Code with the provisions of S. 146 (1) and the third proviso to S. 145 (4) of the Cr. P. C. of 1898 as amended by Act 26 of 1955. He drew our attention to the circumstances that the third proviso to S. 145 (4) of 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 S. 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 S. 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.) 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 charges 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 S. 145 Cr. P. C. 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 Ss. 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 S. 146 but without the words "pending his decision under this Section" and with the words "at any time after making the order under S. 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 S. 146. The words "pending his decision under this section" have apparently been omitted as unnecessary initiated by a preliminary order must proceed and end and therefore an attachment made 'at any time after making the order under S. 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 S. 145 (6) and withdraw the attachment as provided in S. 146 (1) since there can be no dispute likely to cause a breach of the peace once an order in terms of S. 145 (6) is made.