PRITAM Vs. DURGA SINGH

JUDGEMENT

(1.) THIS is a petition under Section 482 of the Criminal Procedure Code and is directed against the order of the Magistrate presumably under Section 146 of that Code in a proceeding under Section 145 whereby a plot of land has been attached and a Receiver appointed for the standing crop of potato and wheat. The dispute arises in this way. Durga Singh and five others were complainants under Section 145 and they stated that they were tenants from one Sudhuru widow of Daulat Ram over land comprising 51 bigihas. 16 biswas situate in Chak Koti, Tehsil Theog. According to them they had sown wheat and potato crop on this land. Pritam and Tulsi Ram present petitioners were stated to be usurping their possession and as such there was apprehension of breach of peace. The usual police enquiry was made and the learned Magistrate having been satisfied that a dispute likely to cause a breach of the peace existed concerning the aforesaid land, made the preliminary order on 17th May, 1975. Thereafter on 20th May, 1975 the learned Magistrate, presumably acting under Section 146, found that a case of emergency was made out and therefore he was unable to satisfy himself as to which of the parties was in possession and attached the subject- matter of dispute until a competent Court had determined the rights of the parties. Under Section 146 (2) a Receiver was also appointed. Pritam and Tulsi Ram have felt aggrieved against these two orders, and have preferred the present petition upon allegation than no enquiry whatsoever was made by the Magistrate and there was no imminent danger of the breach of the peace. Hence according to them no preliminary order could be made under Section 145 (1 ). It is also stated that Pritam and Tulsi Ram pot the land under a gift from Sudhuru and they were in possession- Durga Singh and others complainants even filed a civil suit in the Court of the Subordinate Judge, Theog against them in respect of this very land. In that suit they failed to obtain an interim injunction. They filed a complaint under Section 145 and obtained the attachment order and also the order of the appointment of Receiver. According to petitioners the civil suit being pending, the Criminal Court had no jurisdiction to Proceed under Section 145 or 146 and the learned Magistrate has illegally exercised a jurisdiction. On these assertions the inherent powers of this Court are being invoked and interference is being solicited under Section 482 of the Code of Criminal Procedure.

(2.) THE contention of the respondents is that the Magistrate was fully justified to make an order under Sec-ion 145 (1) and a subsequent order under Section 146. The preliminary order prima facie indicated that the learned Magistrate considered the jamabandi entries as well as the affidavits submitted by the parties. He was clearly of opinion that a dispute likely to cause breach of the peace existed and therefore the preliminary order was made out. Similarly under Section 146 he had the jurisdiction to attach the land and to appoint a receiver. It was wrong to state that Durga Singh and others could not get the interim in-junction in the civil suit. Rather they did not press their application because the Magistrate had already attached the land and appointed a Receiver. This is so clear from the order of the Subordinate Judge, According to respondents, the mere fact that a civil suit was filed did not oust the jurisdiction of the Magistrate, especially when there was apprehenson of the breach of the peace and Sections 145 and 146 were attracted. It was also argued in ultimate analysis that even if the order of the Magistrate was wrong it could not be corrected by the application of Section 282 because it was not a case of illegal assumption of jurisdiction but could be considered a case of wrongful exercise of jurisdiction although the respondents did not accept even that contention.

(3.) AS regards the documentary evidence, the jamabandi entries of 1972-73 on which reliance was placed by the petitioners did not show their possession. Rather the possession was shown to be of Sudhuru, and the respondents Durga Singh and others, claimed to be tenants from Sudhuru. Therefore, the jamabandi entries did not support the case of the present petitioners. The preliminary order, prima facie indicated the information received by the Magistrate, the assessment made by him regarding such information, and the inference drawn that a dispute likely to cause a breach of the peace existed concerning the land- As. such the preliminary order dated 17th May, 1975 was prima facie a legal and correct order. The order dated 20th May, 1975, although made under Section 145 yet was really made under Section 146 because under Section 145 no attachment can be ordered, nor can a receiver be appointed. . The Magistrate under Sub-section (8) of that Section can only make an order to safeguard speedy and natural decay of the produce of the property. In the present case a Receiver has been appointed and that power is only given under Sub-section (2) of Section 146. Similarly under Sub-section (1) of that Section the attachment of the subject of dispute is made in the case of emergency and that attachment is always done after the preliminary order is made under Sub-section (1) of Section 145- Therefore, the order dated 20th May. 1975 for all intents and purpose was one under Section 146, and the immediate effect of that order is that it has to remain valid only until a competent Civil Court has determined the rights of the parties. The civil suit is pending and in that proceeding the rights of the parties shall be determined. Thus no exception can be taken to the attachment order or to the order appointing a Receiver under Section 146.