UCHAB CHANDRA DAS Vs. KHIROD CH DAS

JUDGEMENT

(1.) THIS revision has been filed against an interlocutory order of the learned Magistrate, 1st Class. Cuttack directing attachment of the property in a proceeding under Section 147 Criminal Procedure Code

(2.) AT the instance of opp. party Nos. 1 and 2, proceedings under Section 144 Criminal Procedure Code were initiated against the petitioner and registered as Misc. Case No. 148 of 1971 by the Sub -divisional Officer and Magistrate, 1st Class, Cuttack. On the application of the 2nd party members, a local inspection was conducted by the Magistrate, 1st Class in the presence of the parties and as the 2nd party claimed a right of user of the land for the purpose of worshipping a deity installed thereon, the proceeding under Section 144 was converted to one under Section 147 Criminal Procedure Code, the learned Magistrate being satisfied that 'a dispute likely to cause breach of the peace exists between the parties in regard to the right of user of the land', and parties were called upon to file their respective written statements. On 14.9.1971, on the application of opp. party No. 1, the learned Magistrate passed orders attaching the disputed land. Against this order of attachment, the petitioner preferred a revision before the Additional District Magistrate challenging the jurisdiction of the learned Magistrate to order interim attachment in a proceeding under Section 147 Criminal Procedure Code The A. D. M. stayed operation of the order of attachment to the limited extent that it should not interfere with the sebapuja of the deity pending disposal of the revision and ultimately by his order dated 22.10.1971 dismissed the revision holding that though Section 147 Criminal Procedure Code does not contain any provision for an interim order of attachment and Section 146 does not apply to proceedings under Section 147, still by virtue of Section 147(1), the provisions contained in Section 145(4) are attracted and a Magistrate has jurisdiction where necessary to attach the subject -matter of dispute.

(3.) IT is not disputed that while Section 145 Criminal Procedure Code Contains a specific provision in the third proviso to Sub -Section (4) to order interim attachment of the subject -matter of dispute pending disposal of the proceeding Section 147 Criminal Procedure Code does not contain any such provision. Learned Counsel for opp. party No. 1 relies on the last part of Sub -Section (1) A of Section 147 Criminal Procedure Code namely that the provisions of Section 145 shall, as far as may be, be 'applicable in the case of such inquiry.' According to him, the third proviso to Sub -Section (4) of Section 145 permits a Magistrate to attach the subject -matter of dispute pending final decision. Therefore, the power which a Magistrate undoubtedly has under the said proviso of Section 145(4) can very well be exercised while conducting an inquiry under Section 147, Criminal Procedure Code It is further argued by him that as both the Sections 145 and 147, Criminal Procedure Code refer to disputes relating to immoveable property, the only difference being that the dispute dealt with under Section 145 is in respect of possession of the immoveable property, while under Section 147, the dispute is about the user of the said property and the object of these provisions being to prevent breach of the peace, a broad view is to be taken in assuming that while enacting Sub -Section (1) A of Section 147 the Legislature intended that as far as possible the Magistrate may exercise all the powers during an inquiry which are available to him under Section 145, Criminal Procedure Code In support of this contention, he has placed reliance on two decisions, one reported in (1963) All LJ 784 and the other in AIR 1956 Calcutta 231. On the other hand, it is argued by learned Counsel for petitioners that the contention on behalf of opp. party No. 1 if accepted would amount to importing something into Section 147 which the Legislature has not provided. All that Sub -Section (1) A of Section 147 provides is application of the procedure provided in Section 145 as far as may be, so far as the procedure for conducting the inquiry is concerned and it cannot be interpreted to mean that the power of attachment specifically given to the Magistrate under Section 145 is also to be implied in a proceeding under Section 147.