VARKEY Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE revisions have been referred by a learned judge to a Division Bench to consider the correctness of the decision of a learned judge of this Court in Ravindran versus Rugmini Amma (1977 KLT. 738), which view was repeated again by the same learned judge in Lilly Franklin v. Wilson (1977 KLT. 871) The question raised is whether proceedings under S. 145 of the criminal Procedure Code of 1973 are open to be continued after an interim attachment of the property has been effected. The two decisions of this Court referred to earlier have been understood as taking the view that on the effecting of an interim attachment the proceedings under S. 145 automatically terminate or come to an end, and no further investigation or enquiry is either contemplated or open. It is this view that falls to be examined. In Criminal R. P. No. 129 of 1977 the Magistrate passed an order under S. 146, recalling his preliminary order under S. 145 (1) of the Code, and the attachment effected under S. 146 (1), putting the Village Officer in charge as Receiver of the said property, and holding that he had no jurisdiction to proceed under S. 145 of the Criminal procedure Code and decide the question of possession, and dropping further proceedings. He directed that the attached property will continue in possession of the Village Officer till a competent Court determined the rights of parties, or till a Receiver is appointed by such Court. The parties were free to move the competent Court to decide the question of possession or to move the Magistrate himself to withdraw the attachment if at any time they were satisfied that there was no longer any likelihood of any breach of the peace. In Criminal R. P. No. 107 of 1977 again, the Magistrate passed a similar order dropping the proceedings after an order of interim attachment and appointment of the Village Officer as Receiver.

(2.) S. 145 (1) of the Criminal Procedure Code empowers an executive Magistrate on being satisfied that a dispute which is likely to cause a breach of the peace exists, to make an order in writing stating the grounds of his satisfaction and requiring the parties to attend his Court and put in written statements of their claims as respects the fact of actual possession. Under sub-S. (4) the Magistrate, on perusal of the statements, and after hearing the parties and their evidence, may decide as to which of the parties was in possession on the date of the order passed by him under sub-section (1 ). Sub-sections (5) and (6) of S. 145 are as follows: " (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom indue course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3 ). " S. 146 (1) enables the Magistrate at any time after making the order under S. 145 (1) to attach the subject-matter of the dispute in one of three contingencies, namely, (1) of emergency; or (2) if he decides that none of the parties was then in possession; or (3) if he is unable to satisfy himself as to which of them was in possession. After attaching the subject-matter of the dispute in any of the above three contingencies, the Magistrate is to leave the rights of parties to be determined by a competent Court with reference to the question of possession. Sub-section (2) of S. 146 enacts: " (2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908: Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil court, the Magistrals (a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the civil Court and shall thereafter discharge the receiver appointed by him; (b) may make such other incidental or consequential orders as may be just. " On the scheme of the Sections alone, proceedings started under S. 145 (1) must run their course till they terminate under S 145 (4 ). by decision as to possession; or under S. 145 (5) by dropping the proceedings; or under S 145 (6) by the passing of an effective order. S 146 (1) provides for attachment of the subject-matter of the dispute as an interim measure. Under clause (2) of S. 146 the courses open to the Magistrate in such a case are indicated. They are, either to make arrangements for looking after the property or to appoint a Receiver thereof If a Receiver is appointed, and if it subsequently happens that the Civil Court also appoints a Receiver in respect of the subject-matter of the dispute, the Magistrate is either to order the receiver to hand over possession to the Civil Court Receiver or to make such other incidental or consequential orders. From the scheme of the Section itself it is clear that the proceedings do not automatically terminate after the effecting of an interim attachment under S 146 (1 ). A limited course of enquiry is open, as indicated by S. 146 (2); so that it would not be correct to take the view that there is an automatic cessation of further enquiry or a dropping of the proceedings on an interim attachment and appointment of a Receiver under s. 146 (1 ). We do not understand the two decisions of Janaki Amma J. as authorities for this extreme view, although some of the observations may lend colour to such an interpretation. In Ravindran. Rugmini Amma (1977 KLT. 738)145 proceedings were pending in respect of a tank. Pending the proceedings an original Suit was filed in the Munsiff's Court, Vaikom An interim injunction was passed against the B party restraining it from interfering with the management of the tank with the A party. The injunction was vacated after hearing both parties and the suit was dismissed. Thereafter the proceedings were initiated under S 145 of the Criminal Procedure Code and the tank was placed under attachment, the Village Officer being appointed Receiver. The magistrate recorded evidence and found the A party in possession. The correctness of the order was challenged on the ground that having attached the property and put the same in charge of a Receiver the Magistrate ought not to have proceeded with the case; nor decided the question of possession on the date of the preliminary order; but should have left the rights of parties to be decided by a competent Civil Court. The learned judge observed that the objection was well-founded. The learned judge referred to the provisions of s. 145 (4) of the prior Code and to S. 146 (1), and compared the same with the provisions of S. 145 (4) of the present Code. It was pointed out that the new code left no power in the Magistrate to attach the property pending decision as to who was in possession on the date of the preliminary order. The learned judge noticed that the order of attachment and appointment of a Receiver was to continue till satisfaction that there was no longer any likelihood of a breach of the peace or till determination by a competent Court of the rights of parties and their possession. Then the learned judge remarked: "12. In the light of the provisions referred to above, the Sub Divisional Magistrate was not expected to conduct an enquiry regarding the possession of the subject of dispute after the attachment of the property and the appointment of the Receiver thereto. In the instant case, the materials placed would show that a suit has been tiled for declaration of rights by a party. The learned Sub Divisional Magistrate should have allowed the attachment to continue till the Civil Court determine the rights of parties or he could have continued the proceedings in order to satisfy himself that there is no longer any likelihood of breach of the peace with regard to the property in dispute. In other words, the finding of the Sub Divisional magistrate that a party was in possession of the property, the direction issued with regard to the management thereof, the withdrawal of the attachment and the termination of the Receivership are not warranted by the provisions of law referred to above. The order dated 10th of December, 1976 passed by the Sub divisional Magistrate, Palai in M C. 3 of 1976 including the order terminating the attachment and Receivership will stand set aside. The Sub Divisional magistrate is directed not to proceed with the case further under S 145 except in order to find out whether conditions exist for the withdrawal of the attachment under proviso to S. 146 (1) Cr. P. C. In case it is found that there is no longer any likelihood of breach of the peace, he may withdraw the attachment The Receiver appointed by him may also continue to be in possession until the attachment is raised or until a Civil Court appoints a Receiver. In the latter contingency, the Magistrate may act according to S. 146 (2) Crl. P. C. The petition is allowed as stated above". Actually, it will be found that the learned judge, far from holding that there was an automatic termination of the proceedings on the appointment of a Receiver by the Magistrate, directed that the limited investigation under S. 146 (2) be made. That, we think, was correct. It would not be fair or proper to wrench a sentence out of its context and seek to deduce from it a view that is not justified on an overall assessment of the case In Lilly Franklin v. Wilson (1977 KLT. 871), the question was whether a composite order passed by the Magistrate, combining a preliminary order under s. 145 (1) and an order of interim attachment, and appointment of a Receiver under S. 146 (1), was revisable having regard to S. 397 (2) of the Criminal procedure Code The learned judge held that in the circumstances, the order was not an interlocutory one and that the revision petition was properly entertained and allowed by the Sessions Judge. This was the only decision of the learned Judge. In so holding, the learned judge observed: "in the instant case, the order dated 17th June, 1977 issued by the Magistrate takes in not only a preliminary order under S. 145 (1) but also an order of attachment under S. 146 (I ). Once an order is passed under S. 146 (1) Cr. PC. the Magistrate is not expected to proceed with the enquiry under S 145 or to decide whether any and which of the parties was in possession of the subject of dispute on the date of the preliminary order or whether there has been a dispossession within a period of two months of the preliminary order. The attachment will continue until a competent court determines the rights of parties or until the Magistrate withdraws the attachment on being satisfied that there is no longer a likelihood of breach of peace with regard to the subject of dispute. The order of attachment thus puts an end to the proceedings so far as it relates to the enquiry by the Magistrate as to who was in possession of the property and viewed in that light, it is a final order. The revision petition before the Sessions Judge was not, therefore, hit by the restriction contained in S. 397 (2) of the Code of criminal Procedure and the learned Additional Sessions Judge was right in overruling this objection regarding its maintainability. " (Para 7) Related to the scope of enquiry before the learned judge, the conclusion and the course of action pursued by the learned judge were correct and justified. As in the previous case, a stray observation or sentence wrenched out of its context may be susceptible of an interpretation as to the scope of the proceedings under S. 146, which question was actually never before the learned Judge. We would accordingly understand the two decisions and explain them away in their proper setting and context, rather then hold that they wrongly expound the scope of S. 145 or 146 of the Crl. P. C.

(3.) THESE Revision Petitions are allowed and the order of the Magistrate is set aside with a direction to dispose of the proceedings in accordance with law and in the light of the observations contained in this judgment. Allowed. . .