SUKHDEV SINGH Vs. BACHAN KAUR

JUDGEMENT

(1.) THIS is a reference by Sessions Judge, Sangrur vide order dated the 25th March, 1969 whereby he has recommended that the order of the Executive Magistrate Sangrur dated the 12th of November, 1968 appointing receiver of the property attached under Section 145 (4) of the Criminal Procedure Code, be quashed.

(2.) THE facts giving rise to this petition are not in dispute. Bachan Singh was murdered on 15th of December 1967 and his death led to dispute regarding the agricultural land left by him. This dispute was between Bachan Kaur who alleged herself to be the widow of Bachan Singh and Sukhdev Singh who contended that he was the daughter's son of Bachan Singh. Sukhdev Singh also denied that Bachan Kaur was the widow of the deceased. At first Bachan Kaur filed a suit for perpetual injunction restraining Sukhdev Singh and others from interfering with her possession and in that suit obtained a temporary injunction. Later on this injunction was vacated on 7th October, 1968. Bachan Kaur made an application on 26th August, 1968 before the Deputy Commissioner. Sangrur which ultimately reached Executive Magistrate and on the basis of the police report, proceedings under Section 145, Criminal P. C. were taken and on the 12th, November, 1968, the Executive Magistrate, passed a preliminary order holding that a dispute likely to occasion the breach of the peace between the two parties existed. A notice was ordered to be served on the parties asking them to appear on 28th, December 1968. Further-more by this order the land in dispute was attached and Naib Thasildar, Sunam was appointed as a receiver. The receiver was directed not to allow any of the parties to enter on the land. Against this order Sukhdev Singh and his father Karter Singh filed a revision petition in the Court of the Sessions Judge and when the revision petition came up for hearing two contentions were raised on behalf of the petitioners. It was firstly contended that attachment of the land could not have been ordered as there was no finding by the learned Magistrate that the case was one of the emergency. The second ground taken by the petitioners was that in any case, even if the order of attachment could be passed, no order could be legally passed by the Executive Magistrate as such an order was not envisaged by sub-section (4) of S. 145. Criminal P. C. and can only be passed under Section 146 (2 ). The learned Sessions Judge even after considering that there was no clear finding by the Executive Magistrate that it was a case of emergency has not recommended that the order of attachment of property be set aside. It was observed by the Sessions Judge that the order of attachment though not proper was not to be interfered with as such an order could be passed by the Executive Magistrate in the exercise of his discretionary powers.

(3.) THE second contention , however found favour with the learned Sessions Judge and it has therefore, been recommended that the order of the appointment of the receiver be quashed. Support for this view has been sought from Diwan Chand v. Emperor, AIR 1929 Lah 223 wherein it was observed as under :" section 146 (2) cannot be so read as to make its provisions apply to attachment under Section 145 (4) and the appointment of receiver under Section 145 (4) is illegal". While holding that there is no power of appointment of receiver under Section 145 (4), Dilip Singh, J. who decided Diwan Chand's case. AIR 1929 Lah 223 followed Subadramma v. Satyaswami, (1910) 7 Ind Cas 895 (Mad) and Mewa Lal v. Emperor, 44 Ind Cas 41 = (AIR 1918 Pat 197 ). No reasons have been given for this view in Diwan Chand's case, AIR 1929 Lah 223 and even in Subadramma's case, (1910) 7 Ind Cas 895 (Mad) no reasons have been mentioned as to why the power of attachment contained in sub-sec (4) of S. 145, Criminal P. C. would not include the power to manage the property and if necessary to take possession of the property through receiver. Argument raised in Subadramma's case, (1910) 7 Ind Cas 895 (Mad) was that Clause (2) of Section 146, Criminal P. C. could not be read so as to make this provision applicable to attachment under Section 145 (4 ). The contention that the power to attach contained in sub-section (4) of S. 145 included the power to manage the property and to appoint a receiver, if need be, was not even considered in this case.