KALU Vs. KARNIDAN

JUDGEMENT

(1.) THIS is an application under section 482, Cr. PC against the order passed by learned Sessions Judge, Bundi, on March 10, 1989 by which he dismissed the part of the prayer of the petitioners in revision filed against the order, dated 26th August 1988 passed by the learned A. C. M. Bundi in proceedings under section 145, Cr. PC.

(2.) BRIEF facts giving rise to this petition are that non -petitioner Nos. 1 arid 2 Karnidan and Kishan Singh aged 75 years and 70 years respectively are real brothers. They filed an application under section 145 Cr. PC before learned A. C. M. Bundi on 17 August, 1988, wherein it was alleged by them that they are the Khatedars and are in cultivatory possession of 15 Bighas 15 Biswas of land in Khasra No. 75 old Khasra No. 25 in village Theekariya Charans, Tehsil in District Bundi. This land is known as Peeplihala. It was alleged by them that they had given the land for cultivation on Aadoli in erstwhile Bundi State of Rodu, father of petitioner No. 1 Kalu, for a period of two years but later on they cultivated the land themselves. It was alleged by applicants-non-petitioners that non applicants got the land entered in their name in the revenue record in connivance with the Land Settlement Officers though cultivatory possession remained with them since last 45 years. It was stated in the complaint that non-applicant-petitioners had filed a suit in respect of this land against Rodu son of Bholu wherein a receiver was appointed on 25. 5. 1987. When the applicant non petitioners learned about it they approached the Revenue Appellate Authority where from an order was passed for continuing their possession on depositing Rs. 250/- per bigha. This order was challenged by both the parties before the Board of Revenue wherein the Revenue Board gave a decision on 14. 9. 1987 that Karnidan shall continue to be in possession of the disputed Sand provided he deposits a security at the rate of Rs. 200/- per bigha per year and Karnidan non petitioner deposited Rs. 3000/- on 2. 11. 1987. The non- applicants Kalu etc. joined hands with Rodu and filed a compromise without the knowledge of the applicant-non-petitioners and the learned A. C. M. decreed the suit in favour of the non- applicant petitioners in terms of compromise, an appeal against this decree is pending. Application under section 145, Cr. PC had been filed because non-applicant-petitioners in the garb of the stay order are trying to dispossess the applicant-non-petitioners and that there is breach of peace. Notice was issued of this application and the learned Magistrate on 26. 8. 88 passed an order directing issuance of notice to the petitioners and simultaneously drew up an order u/s 146, Cr. P. C. appointing the Tehsildar, Bundi as receiver. Tehsildar was directed to take over the possession forthwith and to make necessary arrangements for cultivation of the land in dispute from year to year by auctioning the same and by seeking approval of the court. This order under. 146 Cr. PC was challenged by the petitioners before the learned Sessions Judge, Bundi. The learned Sessions Judge, Bundi modified the order of the learned Magistrate to the extent that inquiry contemplated under sec. 145 (4) Cr. PC would remain stayed and the parties were directed to await the decision of the Civil Court for the purpose. He however, upheld the order appointing the receiver on the land in dispute. It is against this part of the order that the present petition has been filed.

(3.) IN Mathuralal's case it has been held that Magistrate's jurisdiction does not come to any end as soon as an attachment is made on the ground of emergency and further that there is no express stipulation in S. 146 that jurisdiction of the Magistrate ends with the attachment nor it is implied, from it. The obligation to proceed with the enquiry as prescribed by S. 145 (4) is against any such implication. The only provision for stopping the proceeding and cancel lings the preliminary order is to be found in S. 145 (5) and it can be on the ground that there is no longer any dispute likely, to cause a breach of the peace. An emergency is the basis of attachment under the first limb of Sec. 146 (1) and if there is an emergency, no one can say that there is no dispute likely to cause a breach of the peace. Their Lordships further compared the provisions of Code of Criminal Procedure before 1955 under the old Act and as they now stand under the 1973 Code. After discussing their Lordships came to the conclusion that the provisions of secs. 145 and 146 of the 1973 Code are substantially the same as the corresponding provisions before the 1955 amendment. The only noticeable change is that the second proviso to Sec. 145 (4) (as it stood before the 1955 amendment) has now been transposed to sec. 146 but without the words "pending his decision under this Section" and with the words "at any time after making the order under sec. 145 (1)" super added. The change clearly, is in the interests of convenient draftsmanship. All situations in which ah attachment may be made are now mentioned together in S. 146. The words, pending his decision under this section' have apparently been omitted as unnecessary since S. 145 provides how the proceedings initiated by a preliminary order must proceed an end and therefore an attachment made at any time after making the order under S. 145 (1)' can only continue until the termination of the proceeding. At the termination of the proceeding, if he finds one of the parties was in possession as stipulated, the Magistrate must make an order as provided in S. 145 (6) and withdraw the attachment as provided in S. 146 (1) since there can be no dispute likely to cause a breach of the peace an order in terms of S. 145 (6) is made. IN this case their Lordships were considering the question as to whether Magistrate as soon as he passes an order of attachment whether he has to do anything also except awaiting the decision or direction of the Civil Court. The position in that case was little different than the one in the instant case.