SIDDIQUE ALI Vs. MD AU

JUDGEMENT

(1.) This Criminal Revision has been referred by the learned single Judge to decide the following questions:Whether an order passed under section 146(1) of the Criminal Procedure Code attaching the land in dispute can be treated as an interlocutory order or not

(2.) This has been referred in view of different views expressed in two decisions in Indrapuri Primary Co-operative Housing Society Ltd. & Anr. v. Bhabani Gogoi and Urikhimbam Kala Singh v. Takhell Lambam juginder Singh & Ors. In Urikhimbam Kala Singh (supra) Hansaria, J. held that an order of attachment under section 146(1) cannot be treated as interlocutory order and therefore revision would lie. On the other hand the recent decision reported in 1990 GHC-583 one of us (Manisana, J.) held that the order under section 146(1) is an interlocutory order and no revision lies under section 397(2) of the Cr. P.C. In this revision, we are therefore required to answer the reference. We have heard Mr. S.H. Bhuyan, Learned counsel for the petitioner and Mr. B.P. Borah, learned Counsel for the opposite party.

(3.) Section 146 is a part of section 145 under which a Magistrate declares possession of a party who is found to be in actual possession or entitled to be in possession. This section deals with Magistrates power to attach the subject of the dispute the Section further empowers the Magistrate to appoint receiver in a proceeding, in an appropriate case, under section 145 Cr. P.C. The power under section 146 can, be exercised namely at any: time after making the preliminary order under section 145(1) in case if the Magistrate considers the case to be one of emergency in order to prevent the danger of breach of peace and (2) after the enquiry under section 145(4) when the Magistrate due to paucity or unreliability of evidence is unable to decide who among the parties was in actual possession as referred to in section 145 or decide that none of the parties was in such actual possession. This situation is envisaged under section 145(4) where the Magistrate is directed to come to a decision - as to possession, if possible. From the reading of the section 146, it is abundantly clear that there can be no order under section 146 without a proceeding under section 145 Cr. P.C. Besides, order of attachment under section 146(1) is permissible only when the Magistrate considers the case to be one of emergency or is unable to decide question of possession after enquiry as prescribed under section 145 Cr. P.C. The attachment to continue until a competent court determines the rights of parties thereto. Under the old code two kinds of attachment, namely attachment in case of emergency before the enquiry under section 145(4) and attachment after the said enquiry in case of doubt as to which of the party was in possession or decision that none of the parties was in such possession were separately provided for in two separate provisions; the first one under proviso 3 to old section 145 (4) and second one in section 146. The first kind of attachment in case of emergency had a qualifying clause pending his own decision in the case, meaning only that this should remain in force till Magistrates own decision in the enquiry. However, in the present code both the said two kinds of attachments have been incorporated in section 146. In the result, the matter consequential to attachment such as appointment of receiver which were provided for in case of attachment under section 146 after enquiry under the old code and which were absent in Case of emergency are now provided for in case of emergency attachment. Because of new section 146 also contained a Clause until a competent court has determined the rights of the parties thereto with regard to the persons entitled to the possession thereof has led to divergent views of different High Courts.