SHAMEEL Vs. MUHAMMED ANSARI

JUDGEMENT

(1.) THE question of law involved in this revision is whether an order of attachment passed by the Executive Magistrate under S. 146(1) of the Code of Criminal Procedure (for short 'Cr.P.C.') is amenable to revisional jurisdiction under S. 397 of Cr.P.C. The property in dispute, and under attachment, is a two storied building. The dispute actually is between two factions within the same religion, or between two groups within a society. On the basis of the report submitted by the Sub Inspector of Police, Kottayam West Police Station, the Sub Divisional Magistrate, Kottayam, in his capacity as Executive Magistrate proceeded under S. 145 of Crl.P.C. on the finding that there is possibility of breach of peace in view of dispute between the two factions concerning possession over the said building. On prima facie satisfaction of such a possibility, the Executive Magistrate, without and before proceeding to pass preliminary order and notice under S. 145(1) of Cr.P.C. initiated conciliatory efforts. Accordingly on 22.7.2013, the Executive Magistrate issued notice to both the parties to appear on 29.7.2013. In fact, the police happened to submit such a report about apprehended breach of peace on the complaint made by the 1st respondent herein, claiming to be the Secretary of the Ad hoc Committee of Kerala Nadavathul Mujahideen. The said complaint was made on 25.6.2013. Finding that conciliatory efforts may not yield result, the Executive Magistrate directed the police on 30.7.2013 to take necessary precautions to prevent the apprehended breach of peace, and he called for report from the Revenue Tahsildar. On 23.8.2013, the Tahsildar submitted report that the dispute between the two factions still continues, and that it would be safe and proper to maintain the status quo. The status quo meant by the Tahsildar is the state of affairs consequent to the directions made by the police to the revision petitioners to close down the office functioning in the disputed building. The matter proceeded further, and on 7.10.2013, the Executive Magistrate passed preliminary order and notice under S. 145(1) of Cr.P.C., requiring both the parties to appear before him on 18.10.2013 in person or with lawyers, for necessary enquiry into the dispute. As required in the notice, published and served under S. 145(3) of Cr.P.C., both the parties appeared before the Executive Magistrate and filed statements containing the respective claims. Pending the proceedings, the Executive Magistrate passed another order on 17.1.2014 under S. 146 of Crl.P.C. attaching the property in dispute on the finding that it is not possible to decide on the basis of the materials furnished by the parties, as to who was in fact in possession of the building on the relevant date. The said order of attachment passed by the Sub Divisional Magistrate under S. 146(1) of Cr.P.C. is under challenge in this revision.

(2.) THE learned counsel for the respondents, and also the learned Public Prosecutor representing the State, made a preliminary objection that this revision is not maintainable, or that order of attachment passed under S. 146(1) of Cr.P.C. is not amenable to revisional jurisdiction under S. 397 Cr.P.C. for the reason that it is only an interlocutory order as meant under S. 397(2) of Cr.P.C. This preliminary objection was heard in detail.

(3.) THE learned counsel for the revision petitioner cited a decision of the Allahabad High Court in Gulabchand v. State of U.P. (2004 Crl. L.J. 2672), that an order passed under S. 146(1) of Cr.P.C. without any material for subjective satisfaction about likelihood of breach of peace, is bad in law, and is amenable to revisional jurisdiction. But in 2007, another Single Bench of the Allahabad High Court decided otherwise in Revati Raman & Others v. State of U.P. & Ors.( : 2007 (1) ALJ 448). The purport and spirit of the said decision is that if any of the grounds or conditions mentioned under S. 146 Cr.P.C. is satisfied, and the impugned order was passed on any of the grounds, it will have the character of only an interlocutory order, and such an order will not be amenable to revisional jurisdiction under S. 397 of Cr.P.C. In Asok Kumar v. State of Uttarakhand & Ors. ( : (2013) 3 SCC 366), the Hon'ble Supreme Court held that Sections 145 and 146 of Cr.P.C. together constitute a scheme for the resolution of a dispute involving likelihood of breach of peace, and S. 146 cannot be separated from S. 145 of Cr.P.C. The Hon'ble Supreme Court explained that if the Executive Magistrate finds after enquiry that it is not possible to decide who among the parties was in actual possession at the time of passing orders under S. 145(1) of Cr.P.C., the Executive Magistrate can order attachment of the property in dispute, and such attachment can continue in force till a competent civil court adjudicates and decides the dispute including right to possess.