KAMAL CHAND Vs. CHHAGANLAL

JUDGEMENT

(1.) THE facts and circumstances in which this revision petition has been filed are that the petitioner initiated proceedings under section 145 of the Code of Criminal Procedure against the non-applicants before the sub-Divisional Magistrate, Khandwa After enquiry, the learned Magistrate was, however, unable to decide as to which party was in possession of the disputed property on the date of the making of the preliminary order under section 145. He, therefore, made a reference under section 146 of the Code of Criminal Procedure to the Court of the Civil Judge, Class II, Khandwa, for decision of the question as to which party was in possession of the subject of dispute at the date of the order as explained in sub-section (4) of section 145. The Magistrate, however, did not order attachment of the property. During the hearing of the reference by the Civil Judge the petitioner raised the objection that the reference was incompetent as under section 146 a reference could be made to a civil Court of competent jurisdiction only after attaching the property. This objection was overruled by the Civil Judge. Hence this revision petition.

(2.) HAVING heard learned counsel for the parties I have reached the conclusion that the view taken by the learned Civil Judge that under section 146 a reference can be made to a civil Court without attaching the subject of dispute is not correct. Section 145 (1) runs thus :-

(3.) NOW, when a Magistrate is of opinion that none of the parties was in possession on the date of the preliminary order or is unable to decide as to which of them was in possession, then he is under an obligation to make a reference to a civil Court of competent jurisdiction for deciding the limited question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in sub-section (4) of section 145. The word "may" used in section 146 in relation to attachment and drawing, up of a statement of the facts of the case for making a reference does not confer a discretion on the Magistrate for refusing to, make a reference under. section 146. The word "may" as used in section 146 has to be construed as referring to a compellable duty. This becomes obvious from the fact that if a Magistrate is himself unable to decide the question of possession under section 145 (4) and is unable to pass a final order under sub-section (6) of section 145, then he cannot keep the proceedings under section 145 in a state, of suspension ad infinitum without passing any final order. He has then to act under section 146 and make a reference to a civil Court of competent jurisdiction for deciding the question whether any and which of the parties was in possession of the subject of dispute at the date of the preliminary order as explained in sub-section (4) of section 145. When a reference has been made, then the civil Court has to hold an enquiry and transmit its finding to the Magistrate by whom the reference was made; and on receipt of the finding of the civil Court, the Magistrate is required to proceed to dispose of the proceeding under section 145 in conformity with the decision of the civil Court. This is clear from sub-section (1b) of section 146. In relation to the making of a reference the word "may" has the sense of "shall" or "must". If the word "may" denotes a command in relation to the making of a reference, then it has the same connotation in relation to the making of an attachment under section 146. This is plain from the fact that the word "may" in the expression "he may attach it, and draw up a, statement of the facts of the case" used in section 146 governs both the words, "attach" and "draw". Section 146 provides, "he may attach it, and draw up a statement" and not "he may attach it, and may draw up a statement". When, therefore, the magistrate decides to proceed under section 146, he has to attach the subject of dispute. It is only after attaching it that he can make a reference to the civil Court. The necessity for attachment flows from the very fact that if the magistrate is of opinion that none of the parties was in possession of the properly on the date of the preliminary order or is unable to decide as to which; party was in possession, then it is but right that the subject of dispute should be attached by actual "taking and keeping, of possession" and thus keeping the property into custodian legis. The possession of the Court during the period of attachment enures to the benefit of the person who is ultimately found by the civil Court to be in possession of the property on the date of the preliminary order. The necessary implication of not making an attachment under section 146 is absence of the formation of the requisite opinion under section 146 giving to the Magistrate the jurisdiction to make a reference to a civil Court. If after enquiry under section 145 (4) the Magistrate feels that there is no necessity for attachment, it means that he is in a position to decide which of the parties was in possession of the subject of dispute on the date of the preliminary order.