CAJITAN A DSOUZA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition under Articles 226 and 227 of the Constitution of India raises a question of some importance regarding the scope and ambit of Section 146 of the Cr. P. C. , 1973, hereinafter referred to as "the new Code. "

(2.) THE facts giving rise to this petition are few and may be stated thus : On June 6, 1975, respondent No. 3 Harchandrai Vanjumal Santani filed an application before the Executive Magistrate, who is respondent No. 2 to this petition, Under Section 145 of the new Code against the petitioners. The dispute regarding possession relates to shop premises admeasuring 6' x 6' known as "lalit Ladies' Own Store" at Shop No. 1, Rant Chawl, Opp. Sitladevi Temple Mahim. The respondent No. 2 passed thereon a preliminary order Under Section 145 (1) as he was satisfied that there was a dispute between the parties likely to cause a breach of the peace concerning the said premises. On June 13, 1975, the respondent No. 3 made another application to attach the property in dispute Under Section 146 (1) on the ground that the case was one of emergency. This application was granted by respondent No. 2 and he attached the property Under Section 146 (1) till the final decision of the proceedings Under Section 145, On Aug. 19, 1975, the Petitioners filed a written statement denying the allegations made against them by respondent No. 3. Thereafter, on Feb. 21, 1976, the petitioners presented an application contending that in view of the order of attachment passed Under Section 146 (1), the Magistrate had since the passing of the order become functus officio, and he had no jurisdiction to proceed further in the matter. They contended that in the circumstances, the only course open to the parties was to approach a competent court to get their respective rights determined in respect of the possession of the disputed premises. By his order dated April 17, 1976, the respondent No. 2 rejected the contentions raised by the petitioners and held that the mere passing of the order of attachment Under Section 146 (1) on the ground of the existence of emergency is no bar to further proceedings Under Section 145 being held and he was competent to proceed with the matter. It is this order of the Magistrate which has been challenged by the petitioners in this writ petition.

(3.) MR. Ramsingh, the learned Advocate appearing for the petitioners, submitted that there is a distinct departure under the new Code from the provisions of the old Code in relation to the proceedings Under Section 145, and on a plain reading of the provisions of Section 146 (1) of the new Code, the only possible interpretation of the said provisions would be that as soon as the Magistrate passes an order of attachment of the subject of dispute on the ground that the case is one of emergency, his jurisdiction to continue and finally decide the proceedings Under Section 145 conies to an end and he becomes functus officio. He submitted that as soon as an order of attachment is passed by the Magistrate, the only course open to the parties is to approach a competent court, in other words, a civil court and get their rights qua the property in dispute adjudged. Neither of the parties to the dispute can further invoke the jurisdiction of the Magistrate Under Section 145, nor is the Magistrate competent to continue the proceedings and pass an order Under Section 145 (6 ).