RADHEY SHYAM Vs. SMAI DEEN

JUDGEMENT

(1.) THE learned Single Judge, Honourable Mahavir Singh, J. (as he then was) doubted the correctness of the law laid down by this court in Syed Ahmad v. Rasis Ahmad, 1976 AWC 588= 1977 CrLJ 450 and since he was of the view that the scheme of the present Act of the Code is such that proceedings under section 145 (1) CrPC are separate from proceedings under section 146 (1) CrPC unlike the provisions of the old Criminal Procedure Code. THE following questions, therefore, for determination by a larger Bench have been referred :-

(2.) SINCE the learned single Judge has retired we heard this case in order to decide it finally.

(3.) THE point that was canvassed before the learned Single Judge was that the Magistrate could not on one hand attach the plots and on the other require the parties to produce evidence in support of their respective possession over the plots in dispute. In order to appreciate the law relating to sections 145 and 146 CrPC it may be observed that: these sections of the Criminal Procedure Code constitute a scheme in itself with respect to the situation where there is likelihood of breach of peace because of dispute concerning any land or water or their boundaries. If section 146 CrPC is torn out of its setting and read independently of section 145 it is capable of being construed to mean that once an attachment is effected in any of the three situations mentioned therein, the dispute can only be resolved by a competent Court and not by the Magistrate effecting the attachment. In our view section 146 CrPC cannot be separated from section 145 CrPC. THEy have to be read conjunctively. That in our view is the first principle of construction.