PHILIP Vs. VELAYUDHAN

JUDGEMENT

(1.) The question for decision is whether in proceedings under S.147 of the Code of Criminal Procedure, the court has jurisdiction to attach the land in respect of which a right of user is alleged by one party and denied by the other. Govinda Menon, J. has held in Kunhammad Makkaru v. Abdul Rahiman ( 1961 KLT 329 ) that it has no jurisdiction to pass such an order but, as the correctness of this decision was canvassed before Anna Chandy, J. who heard this revision petition, the case has been referred to a Division Bench.

(2.) A few facts necessary for the decision of the case may be stated: The respondents here who were the A party in the court below, claimed the right to bury dead bodies in a part of the land which the petitioner here (B party in the court below) had purchased. According to them, the petitioner was doing certain acts in the land with a view to obstruct the user of the same as a burial ground & such obstruction was likely to cause a breach of the peace. The complaint was enquired into by the Circle Inspector of Police and, on receipt of his report, the Executive First Class Magistrate, Palghat, passed a preliminary order ex parte under S.144(1) of the Code of Criminal Procedure on 13-12-1962, directing that the order would be in force for one month. This was extended for one month more by another order which was also passed ex parte. An order under S.144 could not be in force for more than two months, and on 6-2-1963 the respondents moved for converting the proceedings to one under S.147 of the Code of Criminal Procedure. This prayer was granted the same day. Thereafter, on 16-2-1963, the respondents applied for an order of attachment of the property. On 11-3-1963 the learned Magistrate passed an order placing the property under attachment. The case was adjourned to 18-3-1963 for filing documents and written statement. The criminal revision petition is directed against the order of attachment.

(3.) As stated earlier, this question is covered by the decision in Kunhammad Makkar v. Abdul Rahiman (1961 KLT 329) according to which the court has no jurisdiction to pass an order of attachment in proceedings under S.147 of the Code of Criminal Procedure. The Travancore-Cochin High Court has also taken the same view in E.M. Jacob v. K. Ravivarman (AIR 1953 TC 202). The above view is supported by the decisions in Rahim Baksha v. Abdal Washed (ILR 1948 (1) Cal. 374) and Chelliah Pillai v. Ramiah Thevar ( AIR 1942 Mad. 77 ). The question has been elaborately discussed in E.M. Jacob v. K. Ravivarman, and it is therefore unnecessary to refer to the earlier decisions on the point. It has been pointed out that, while the dispute under S.145 relates to possession of land, that under S.147 is in respect of a right of user of any land or water; and the land or water does not form subject of dispute under S.147. It has also been pointed out that unlike S.145 even the final order does not contemplate placing of the land under attachment.