RAKESH NANDA Vs. STATE

JUDGEMENT

(1.) A dispute in respect of the possession of property No. 5229-31, consisting of a big hall, two rooms on the ground floor inside Sarai Hafiz Banna, Gandhi Market, Sadar Bazar, Delhi, between the parties was taken to the court of Shrimati Nutan Guba Biswas, S.D.M. Kotwali, Delhi under Sections 145 and 146 of the Code of Criminal Procedure. The application was moved on 8th August 1985 and on 9th August 1985 the property was sealed in pursuance of an order of attachment which was passed by the learned Magistrate on the ground that there is grave apprehension of breach of peace and an emergent situation was in existence.

(2.) Against this order a revision was preferred before the High Court on 20th August 1985 by the respondent herein and the order was quashed by this court on 30-10-1985 primarily on the point that the learned Magistrate had not expressed any satisfaction about the breach of peace and the civil court was seized of the matter. Thereafter, on 4-11-1985 the respondent makes an application to the Court of the S.D.M. for restoration of possession. In fact, both the parties make such application. On 5-11-1985 the learned Magistrate called a report from the police as to who was in possession on the date of attachment. On 7-11-1985 Anant Ram respondent made a detailed application indicating as to how he was in possession on the date of attachment and requesting the learned Magistrate to verify herself the facts mentioned in the application. The police made a report that it was not possible for it to state as to who was in possession on the date of attachment. Consequently, on 15th of November 1985 another application was made to the learned Magistrate to summon the report from the vigilance department. it appears that the petitioner had made a complaint against some S.I. and this enquiry was conducted in respect of that complaint. This enquiry was in fact directed into the conduct of the S.I. Mahinder Chandra who had enquired into the complaint under section 448 Indian Penal Code . wherein allegations of trespass of this property were made against the petitioner. The enquiry revealed that the petitioner had trespassed. The petitioner was arrested and the possession of the property was restored to the attorney of the respondent. On 9th of December 1985 the learned S.D.M. passed an order restoring the possession of the premises to the respondent and this order was complied with on 10th of December 1985. The learned Magistrate in her order has stated that she was not deciding the factum of possession but was merely obeying the orders of the High Court and on the basis of the report of the vigilance department of the Delhi Police she restored the possessions as in her view the local police reports and the submissions made by the parties before her were highly confusing and were of no assistance in determining as to who was in possession at the time of attachment. Against this order the petitioner preferred a revision petition before the court of sessions which was withdrawn after the counsel for the petitioner made a statement that since the S.D.M.'s order was an offshoot of the order passed by the High Court the order will be challenged before the High Court only. It was thereafter that this petition under section 482 of the Code of Criminal Procedure was made.

(3.) The crucial question that arises for determination is whether after the order under section 145 (1) and 146, Cr. P.C. was quashed the Magistrate had the power to restore status quo ante; if so, what material could be taken into consideration by the Magistarte in determining the crucial question as to who was in possession at the time of of attachment ? The learned counsel for the parties are agreed that the Magistrate has the power to restore possession to the party from whom the possession was taken at the time of attachment. Mr. Grover urges that in doing so the Magistrate could not base its judgment on the secret report of the vigilance department, particularly in view of the fact that this report has been made behind the back of the petitioner and without giving him a chance of hearing. Mr.D.D.Thakur is of the view that this is a public document and could be made use of. The other aspect of lhe case is that in case the material available at the time of attachment is of no assistance to determine as to who was in possession at the time of attachment and from whose possession the property was attached what should the Magistrate in such a situation do. Mr.P.P. Grover contends that in such a situation the Magistrate ought to keep the property under attachment and ask the parties to go to a civil court or least the Magistrate could do was to retain the property in trust and ask the parties to get the dispute resolved in a civil court and thereafter act in pursuance of a decree of the civil court. Mr. Grover, placing reliance on Frem Chand v. Union of India, 19(1981) Delhi Law Times 118, states that vague allegations and secret hearings are gross violations of Articles 14,19 and 21 of the Constitution. Mr. Grover has also placed reliance on Smt. Kaniz Fatima Bibi v. Stale of Uttar Pradesh and others, A.I.R. 1963 Allahabad 148, in support of his contention that if the Magistrate is unable to find from the material existing at the time of the attachment as to who was in possession he should not pass any orders.