SATYA PAL SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD learned Counsel for the applicants and learned A.G.A. for the State.

(2.) THIS application has been filed by the applicants invoking inherent jurisdiction to quash the order dated 12-4-2005 passed by the Sub-Division Magistrate, Hathras, under Section 146(1) Cr. P.C. The submission on behalf of the applicants is that it was brought to notice of the learned Magistrate that a civil suit is pending and in the circumstances, in view of the principle laid down by the apex Court in the case of Ram Sumer Puri Mahant v. State of U.P., 1985 ACC 45, where the apex Court has said that when there is an adjudication by a Civil Court then the decree will be binding on the Criminal Court and, therefore, the Criminal Court should not be allowed to invoke its jurisdiction particularly when the question of possession is to be examined by the Civil Court. A number of other decisions which has been followed by this Court, was cited on behalf of the applicants, Ramesh Chandra Saxena v. 5th Additional Session Judge, Aligarh, 1998 ACC 474. The second argument advanced by Counsel for the applicants is that the order of attachment under Section 146(1) has been passed without any reasonable cause and after preliminary order was passed, written statement was filed by the applicants but the contesting opposite parties have failed to file any reply, inspite of it, learned Magistrate proceeded to attach the property under Section 146(1) Cr. P.C. In support of this contention, Counsel for the applicants has cited a decision of this Court in the case of Ramesh Chandra Saxena v. 5th Additional Session Judge, Aligarh. Reliance has been placed in para 9 of the said decision. It has emphatically been argued that the power to attach the property in dispute under Section 146(1) Cr. P.C. must not be exercised lightly. Only when the Magistrate finds a situation of emergency and that desperate remedy has to be resorted then in such circumstances, the attachment order can be passed. The third argument is that the order impugned was not in the prescribed format as it is provided in the Criminal Procedure Code. Warrant or possession, under Section 146 Cr. P.C. is prescribed in 'Form No. 26'. Since the order of learned Magistrate is not in the prescribed format, the attachment order should be quashed.

(3.) I have gone through the entire application and affidavit filed on behalf of the applicants. There is no a whisper in the entire record as to whether there has been any adjudication on the question of possession or title or even there is an interim order such as temporary injunction passed in favour of the applicants which could make out a ground for ousting the jurisdiction of the Criminal Court. On the contrary, I have perused the impugned order under Section 146(1) Cr. P.C. The order clearly states that an application was moved by one of the parties on 11-1-2005, on which the police report was called for. The report was submitted on 5-2-2005. It was also brought to the notice of the learned Magistrate that there is tension between the two contesting parties regarding standing wheat crop on the disputed land and there are chances of grave breach of peace. In such circumstances, the Magistrate recorded his satisfaction that it will be in the interest of justice to attach the standing crop. He has also stated in the concluding paragraph of the impugned order that the order of attachment is passed after being fully satisfied on the basis of police reports dated 5-2-2005 and 8-4- 2005. He has no other alternative but to pass the order of attachment under Section 146(1) Cr. P.C. In view of clear finding recorded by the Magistrate, I do not see any illegality in taking the preventive measure to attach the property to maintain peace within the locality and also between the contesting parties. The order has been passed only after the Magistrate was fully satisfied that there is imminent danger in the locality of the area. In the case of Ratan Singh v. State of Rajasthan, 1994 Cr. L.J. (NOC) 415, the Court had ruled that even an order of status quo would not oust the jurisdiction of the Magistrate to initiate the proceeding, if there is an imminent danger and apprehension of breach of peace. In the circumstances, the second argument of the Counsel for the applicants is not acceptable. So far the third argument that the order was not passed in the proper form i.e. Form No. 26 as provided in the Criminal Procedure Code is also not acceptable. This is an order of attachment which is not a final order but passed in an emergent situation. In the instant case, the final order has yet to be passed, though the property has been attached, the question of possession has yet not been decided. In the case of Mathura Lal v. Bhanwar Lal, AIR 1980 SC 242, it has been laid down that the Magistrate's jurisdiction does not come to an end as soon as an attachment is made on the ground of emergency. Section 146 Cr. P.C. does not contemplate regardless of the situation, consequent upon which an attachment is effected. It is the Civil Court and not the Magistrate that is to have further jurisdiction in the matter, after an attachment is effected. Sections 145 and 146 Cr. P.C. of the Criminal Procedure Code together constitute a scheme for the resolution of the situation where there is likelihood of a breach of the peace. If Section 146 Cr. P.C. is torn out of its setting and read independently of Section 145 Cr. P.C., it is capable of being construed to mean that once an attachment is effected, the dispute can only be resolved by a competent Court and not by the Magistrate effecting the attachment. Section 146 Cr. P.C. cannot be separated from Section 145 Cr. P.C. It can only be read in the context of Section 145 Cr. P.C. Contextual construction must surely prevail over isolationist construction, otherwise, it may mislead. In the instant case, the Magistrate has attached the property in an emergency, there is no express stipulation that the jurisdiction of the Magistrate comes to end with the attachment. The obligation to proceed with the inquiry as prescribed by Section 145(4) Cr. P.C. is against any such implication. The only provision for stopping the proceeding and cancelling the preliminary order is one in sub-clause 5 of Section 145 Cr. P.C. i.e. there is no longer any likelihood of breach of peace. The basis of attachment is a situation of 'emergency'. It is thus evident, a bare reading of the impugned order is sufficient proof of the fact that the Magistrate passed an order under Section 146(1) Cr. P.C. after being satisfied on the basis of two police reports, therefore, the argument on behalf of the applicants that the proceedings should have been dropped on account of the reasons; (i) pendency of the civil suit, (ii) no written statement was filed by the contesting opposite party and (iii) the order under Section 146(i) Cr. P.C. was not in the prescribed form, are not acceptable.