TRIJUGI TIWARI Vs. STATE AND OTHERS

JUDGEMENT

(1.) This is a reference by the Temporary Sessions Judge of Gorakhpur recommending that interim orders of attachment passed by the Additional S. D. M. Sadar of Gorakhpur in a case under Sec. 147, Cr. P. C. be set aside.

(2.) The dispute is between Trijugi Tewari on the one side and the members of the Hindu public on the other, over a certain temple. Trijugi Tewari claims that the temple is his private family temple, from which he can exclude the public if he chooses; whereas the other party asserts that it is a public temple, in which the public has a right to go and worship. The proceedings were originally started under Sec. 145, Cr. P. C., but the case was converted into one under Sec. 147, Cr. P. C. on 13-10-1961. And on 20-10-1961, finding that there was danger of a clash because Trijugi Tewari was trying to prevent the members of the public from worshipping in the temple, the learned Magistrate directed the Station Officer concerned to take "necessary action" immediately and to appoint a shahna or caretaker. This order, which was duly carried out by the police, had the effect of attaching the property and handing it over to a supurdar.

(3.) The question is whether a Magistrate acting under Sec. 147, Cr. P. C. can legally pass interim orders of attachment in this manner. Sec. 147 does not contain any provision explicitly authorising the Magistrate to take interim action of this nature; but it is to be noted that by virtue of Cl. (1-A) of the section, the Magistrate, while conducting his inquiry with a view to finding out whether the right of user exists or not, is empowered to make use of the provisions of Sec. 145 as far as they may be applicable; and Sec. 145 contains a specific proviso that "if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute pending his decision." The learned Sessions Judge has placed reliance on certain rulings of the Kerala and Patna High Court - Kumhammad Makkaru Vs. Abdul Rahiman, (1961) (2) Crl.L.J. 234 and Rameshwar Rai and others Vs. Raghu Kehar, AIR 1961 Patna 369 in which it has been held that in proceedings under Sec. 147 it is not possible for the Magistrate to take action under the above-mentioned proviso to Sec. 145 by attaching the immovable property in question because the "subject of dispute, which alone can be attached under the said proviso, is not the land or water itself but only the right of user of that land or water. With all due respect to the learned Judges who decided those cases, however, I cannot help feeling that their approach to the problem is unduly narrow; and I see no reason why in a case under Sec. 147 the land or water about which the parties are quarrelling should not be deemed to be the "subject of dispute." There is no fundamental logical distinction between disputes under Sec. 145 and Sec. 147. Both of them relate to disputes relating to immovable property (as is clear from the heading of Chapter XII in which these sections are included), the only difference being that the dispute dealt with under Sec. 145 is in respect of the possession of the immovable property, whereas under Sec. 147 the dispute is about the user of the said property. In either case the subject-matter of the dispute, viewed from the broad common sense angle, is the immovable property itself. Moreover, both under Sec, 145 and under Sec. 147 the primary object of the proceedings is to avoid a breach of the peace; and it seems an odd conclusion to draw that whereas the legislature intended to grant Magistrates the power to forestall such a breach during the pendency of a case under Sec. 145, it refused or omitted to grant a similar power to avoid a breach during the pendency of proceedings under Sec. 147. My conclusion therefore is that a Magistrate acting under Sec. 147 can attach the land or water involved in the dispute before him, during the pendency of the proceedings, in exercise of the powers conferred by the last proviso to Cl. (4) of Sec. 145. This view, it may be noted, receives support from the decision of the Calcutta High Court in Mukul Ranjan Chatterji Vs. Champa Bala Roy, AIR 1956 Calcutta 231 .