Mathuralal v. Bhanwarlal & Anr.

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 10 of 1979. Appeal by Special Leave from the Judgment· and Order dated HI 12-10-1978 of the Madhya Pradesh High Court in Criminal 'Revision No. 336 of 1978. D. N. Mukherjee and N. R. Choudhary for the Appellant. Dalveer Bhandari for Respondent No. 1. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. On the report of the Station House Officer, Manak Chowk, Ratlam, that there was a d~ute between Mathuralal and Bhanwarlal concerning a house situated"tn._ Kambalpatti, Ghas Bazar, Ratlam, which was likely to cause a breach of the peace, -the Sub Divisional Magistrate, Ratlam, passed a preliminary order under ~..,ction 145(1) of the Code of Criminal Procedure 1973, on 1st March, 1978. On 2nd March, 1978, the learned Magistrate attached the subject of dispute under Section 146 ( 1) r Criminal Procedure Code co'nsidering the case to be one of emergency.

Thereafter\ when the learned Magistrate wanted to proceed with the enquiry under Sec· tion 145 Criminal Procedure Code, an objection was raised by Mathuralal that such an enquiry was incompetent once the subject of the dispute had been attached under Section 146 Criminal Procedure Code. The objection was overruled by the learned Magistrate. ,Successive Revisio'ns taken before the Sessions Judge and the High Court having borne no fruit, Mathuralal has filed the present appeal by spoxial leave of this Court.· The High Court, we may mention here, thought that the matter was concluded against the appellant by the decision of this Court in Clumdu Naik & Ors. v. Sitaram B.· Naik & Anr.C) Shri Mukherji, learned counsel for the appellant urged that under Section 146 of the Criminal Procedure Code of 1973, a'n attachment of the subject of dispute could be effected in three situations :

(i) if the Magistrate at any time after making the order under Section 145(1) considered the case to be one of emergency, or (ii) if he decided that none of the parties was then in such possession as was referred to in Sectiory 145, or (iii) if he was unable to satisfy himself as to which of them was theh in such possession of the subject of dispute. The attachm~nt so effected, regardless of the situation consequent upon which it was effected, was to subsist until a competent Court determined the rights o~ the parties with· regard to the person entitled to possession. This, he urged, clearly indicated that after an attachment was effected it was the Civil Court and not the Magistrate that was to have further jurisdiction in the matter. He contrasted the provisions of Section 146(1) ,of the pres~nt code with the provisions of Section 146(1) and the third proviso to Section 145 ( 4) of the Criminal Procedure Code of 1898 as amended by Act 26 of 1955. He drew our (1)

[1978]2 SCR 353 = 1978 Crt. L. J. 356. t MI\THURALAL v. BHANWARLAL (Chinnappa Reddy, J.) 62 3 attention to the circumstance that the third proviso to Section 145 ( 4) <lf the old Code empowered the Magistrate, if he considered the case <lne of em~rgency, to attach the subject of dispute p;!ndi'ng his decision under that Section, while Section 146(1) of. the previous Code empowered the Magistrate to attach the subject of dispute if the Magistrate was of the opinion that none of the parties was then in possession -or if the Magistrate was unable to decide as to which of them was in -such possession and thereafter to refer to the Civil Court for decision the question whether aily and which of the parties was in possession ·of the subject of dispute.

Therefore, he said, under the previous Cod•;!, in the case of attachment becaus'e of emergency the Magistrate was himself competent to decide the question of possession and in the -other two cases he was to refer the dispute to the Civil Court,_ whereas, und;!r the present Code, in all the three situations the Magistrate was to leave the matter for adjudication by the Civil Court. Thus, the submission of Shri Mukherji was that while under the previous Code it was permissible to attach the subject of dispute pending e'n- ..quiry by the Magistrate as contemplated by Section 145, such attach- -ment pending decision by the Magistrate was not permissible under 1he provisions of the present Code. According to him so soon as. the Magistrate effected an attachment he had nothing further to d~ except :await the decision or the directio'ns of the Civil Court.

Though at first blush there appeared to be force in the submissions .of Shri Mukherji, a closer scrutiny of the provisions of Sections 145 and 146' exposes their unsoundness. It may perhaps be desirable, at 1his stage to extract the provisions of Sections 145 and 146 to ilie extent that they are rele'-:ant, in the Code of 1898 before it was amended in 1955, in the Code of 1898 after it was ame'nded in 1955 :and in the Code of 1973 : n 1898 Code before it was amended in 1955 145 (1)

Whenever a District Magistrate Sub.divisional Magistrate or Magistrate of the first class is satisfied from a policereport or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local liniits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the ~ubject of dispute. (2) " .... " (3) A copy of the order shall be served in manner provided by t4is Code for the service of a summons upon such person or persons as the Magistrate may <,\irect, an,C,. at least qne copy shall be t Jl1 1898 Code after tire amendment of 1955 145 ( 1)

Whenever a District Magistrate, Sub.divisional Magistrate or Magistrate of the first class is satisfied from a policereport or other ·information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend Court in person or by pleader, within a time to be fixed' by such Magistrate and to put in written statements. of their ·respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evi- -dence of sli"ch persons, as they rely upon in support of such claims. (2) (3)

A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may qirect,, an4 a,t ~~~t on~ co:ry shall be '-x' ,t._ 1973 Code 145 (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any la~ or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring 'the parties concerned in such dispute . to attend his Court in person or by pleader, on specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject !Jf dispute. (2) ( 3 )

A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct. and at least one copy shall ttl 0 0 0 ttl 00 8 .... Cfl .o published by being affixed to soine conspicuous place at or near the subject of dispute. ( 4) The Magistrate shall then, without reference to the merits or the claims of any c-f such parties to a ·right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may btt produced by them, respectively, consider the effect . of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, deci<k whether any and which of the parties wns at the date of the order beforementioned in such possession of the said subject : Provided that ....... .

Ptqvided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section. · (5) Nothing in this section shall pre· elude nny party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists ... ·.r.: published by being alfixed to some conspicuous place at or near the subject of dispute. ( 4) The Ma£istr:ite shall then, without reference to the merits or the claims of any of such parties to a. right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before bini a.nd, if possible, ,decide the ·question whetbtr any and which of the ·parties was at the date of the order before ment~oned in ~uch possession of the said st1bject : Provided that ....... .

Provided further that ....... . Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject· of dispute, pending his decision under this section. (5) Nothing in Ibis section shall preclude any party so required to attend, or any other person interested, from showing that no such ·dispute as aforesaid exists published by being affixed to some conspicuous place at or near the subject of dispute. ( 4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, .. receive all such evidence as may be produced by them, take such further evidence, if any, as he. thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under suo-section (1)' in possession of the subject of dispute : Provided that ....... . (5)

Nothing in this section shall preclude any party so required to attend, or nny othsr person interested, from showing that no such dispute as aforesaid exists J Q 1i ::tl fr: t-,) tit 1898 Code before it was amended in 1955 or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section ( 1 ) shall be final. ( 6) If the Magistrate decides that one of· the parties was or should under the first proviso to sub-section ( 4) be treated as being in such possession of the said.. subject,· he shall issue an or~er declaring such party to be entitled to possession thereof until· evicted 'therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to sub-section ( 4), may restore to possession the party forcibly and wrongfully dispossessed. (7) .....••• (8) ....•••.

(9) .....•.• (10) ...... .. I (146) {1) If the Magistrate descides that none of the parties was then in such possession, or is unable to satisfy himself 1898 Code after the amendment of 1955 or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section ( 1) shall be final. ( 6) If the Magistrate decides that one of the parties was or should under the 2nd proviso to sub-section ( 4) be treated as being · in such possession of the said subject, he shall issue . an order declaring such party to be entitled to possession thereof until elected therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the second proviso to sub-section ( 4), may restore to possession the party forcibly and wrongfully dispossessed. (7) ....•••• (8) ........ (9) ........ (10) ........ (146) (1)

If the Magistrate is of opinion that none of the parties was then in such poss~ss~, . of t4e su'Qiect of dispute, he 1973 Code or has existed; and in :such case the Magistrate shall cancel his ~d order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate undoc · sub-section (1) shall be final. (6) (a) If the Magistrate decides thal one of the parties was or should under the proviso to . sub-section ( 4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) ...... .. (7) - ...... . (8) ....... . (9) .•..•••• (10) .. - •••• ! (146) (1)

If the Magistrate at any time after making the order under sub-section (1) of Section 145 considers the case to be m (I') ":1 : ttl 8 (lj 00 8 r 't-. as to which of them was then in such possession of the subject of dispute, he may attach it until a competent Court has determined the rights of the parties thereto, or the ;Person entitled to possession thereof : Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time, if he is satisfied that there is no longer any likelihoOd of a breach of the peace in regard to the subject of dispute. t l ! I l'i I (2) When the Magi~trate attaches the subject of dispute, he may, if he thinks fit and if no receiver of the property, the subject of dispute, has been appointed by ~II?'

Civil Co~rt appoint a re<;<[iver thereof, 'may attach i.t, and draw up a statement of the facts :·of the case and forward the record of the proceeding to a Civil Comt of competent jurisdiction to decide the question whether anyand which of the parties was in possession of the subject-of dispute at the date of the order as explained in sub-section (4) of section 145; and he shall direct the _parties to appear before the Civil Court on a date to be fixed by him: Provided that the District Magistrate or the Magistrat who has attached the subject of disP.ute may withdraw the attachment at any. time, if he is satisfied that there is no longer any likelihood of a breach of the .peace in regard to the subject of dispute. (lA) (lB) (lC) (lD) (1E) (2)

When the Magistrate attaches the subject of dispute, he may, if he thinks fit and if no receiver of the property, the subject of dispute, has been appointed by any Civil Col}rt a.ppoint a. rc;ceiver thereof, . .t ... one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145; or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof : Provided that such Magistrate may with· draw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. {2)

When the_ Magistrate attaches the subjed of dispute he may, if no receiver in relation to such subject of dispute, 'has been appointed by any Civil Court, make such arrangements as ~e co~siders proper fo.r; :t.: z Q 1:), ;g 1898 Code before it was amended in 1955 w]lo subject to the control of the Magistrate, shall have all the powers of receiver appointed under the Code of Civil Procedure. Provided that, in the event of a receiver of the property, the subject of dispute, being subsequently appointed by any Civil Court, possession shall be made over to him by the receiver appointed by the Magistrate, who shall thereupon be discharged. \ '7 1898 Code after the amendment of 1955 who subject to the control of the Magistrate, shall have all the powers of a receiver appointed under the Code of Civil Procedure.

Provided that, in the event of a receiver of the property, the subject of dispute, being subsequently appointed by any Civil Court, possession shall be made over to him by the receiver appointed by the Magistrate, who shall thereupon be discharged • l,l\ .,..j 1913 Code looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Ma.gistrate all the powers of a ·receiver appointed . under the Code of Civil Procedure, 1908 (5 of 1908) Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate- (a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appomted by the Civil Court and shall thereaft~ discharge the receiver appointed by him; (b) may make such other incidental or consequential orders as may be just. l l tv OJ rJl c::: l:'::t tn g l:'::t 0 00 8 MATHURALAL V. BHANWARLAL (Chinnappa Reddy, J.)

G2\J Quite obviously, Sections 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries. If Section 146 is torn out of its setting and rr~ad independently of Section 145, it is capable of being construed to mean that once an attachment is effected in any of the three situations mentioned therein, the dispute can only be P~solved by a competent Court a·nd not by the Magistrate effecting the attachment. But Section 146 cannot be so separated from Section 145. It can only be read in the context of Section 145. Contextual construction must surely prevail over isolationist construction. Oth~rwise, it may mislead. That is one of the first principles of construction. Let us therefore look at Section 145 and co'nsider Section 146 in that context.

Section 145 contemplates, first, the satisfaction of the Magistrate that a dispute likely to cause a .breach of the peace exists concerning any land or water or their boundaries, and, next, the issuance of a'n order, known to lawyers practising in the Criminal Courts as a preliminary order, stating the grounds of his satisfaction and requiring the parties concerned to attend, his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. A preliminary order is considered so b<~:sic to a proceeding unde~ Section 145 that a failure to draw up a preliminary ord::r has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Sections 145 and 146.

In fact, the first of the situations in which an attachment may be effected under Section 146 of the 1973 Code pas to be "at any time after making the order under sub-section (1) of Section 145'' while the other two situations have, necessarily, to be at the final stage of the proceeding initiated by the preliminary order. Now, the preliminary ordef is required to enjoin the parties not only to appear before the Magistrate on a specifr>.,d date but also to put in their written statements. Sub-section (3) of Section 145 prescribes the mode of service of the preliminary order on the parties. Sub-section ( 4) cast~ a duty on the Magistrate to peruse the written statements of the parties, to receive the evidence adduced by them, to take further. evidence if necessary and, if possible, to decide which of the parties was in possession on the date of the preliminary order.

If the Magistrate decides that one of the parties was in possession he is to make a final order in the manner provided by sub-section (6). Provision for the two situations where the Magistrate is unable to decide which of the parties was in possession or where he is of the view that neither of them was in possession is made in Section 146 4-625SCI/79 0 under which he may attach the.subject of dispute until the determination of the rights of parties by a competent Court._ The scheme of Sectio'ns 145 and 146 is that the Magistrate, on being satisfied about the existenee of a dispute likely to cause a breach of the peace, issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements. Then he proceeds to ~ruse the statements, to receive and to take evidence and to decide which of the parties was in possession on the date of the prelimi'nary order.

On the other hand if he is unable to decide who was in such possession or if he is of the view that none of the parties was in such possession he may say so. If he decides that one of the parties was in possession, he declares the possession of such party. In the other two situations he attaches the property. Thus a proceeding begun with a preliminary order must be followed up by an enquiry and end with the Magistrate decidtng in one of tb..ree ways and making consequential orders. ~here is no half way house, there is no question of stopping in the middle and leaving the parti~s to go to the Civil Court. Proceeding may however be stopped at any time if one or other of the parties satisfies the magistrate that there has never bee'n or there is no longer any dispute likely to cause a breach of the peace. If there is no dispute likely to cause a breach of the peace, the foundation for the jurisdiction of the magistrate disappears.

The magistrate then cancels the preliminary order~ This is provided by Section 145 sub-section ( 5). Except for the reason that there is no dispute likely to cause a breach of the peac~ and as provided by Section 145 (5), a proceeaing initiated by a preliminary order under Section 145 (1) must run its full course. Now, in a case of emergency, a magistrate may attach the property, at any time after making the preliminary order. This is the first of the situations provided in Section 146 ( 1) in which an attachment may be effected. 'There is no express stipulation in Section 146 that the jurisdiction of the magistrate ends with the attachment. Nor is it implied. Far ' from it. The obligatio'n to proceed with the enquiry as pn:scribed by Section 145 sub-section 4 is against any such implication.

Suppose a magistrate draws up a preliminary order under section 145(1) and immediately follows it up with an attachment under Section 146(1), the whok exercise of stating the grounds of his satisfaction and call!- ing upon the parties to appear before him a'nd submit their written statements becomes futile if he is to have no further jurisdiction in the matter. And yet he cannot make an order of attachment under Section 146(1) on the ground of emergency without first making a preliminary order in the manner prescribed by Section 14 5 (1). There is no reason why we should adopt a construction which will lead to MATHURALAL V. BHANWARLAL (Chinnappa Reiidy,/,) such inevitable contradictions. We mentioned a little earlier that the only provision for stopping the proceeding and cancelling the preliminary order is to be found in ~ction 145 (5) and it can only 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 Section 146(1) and if there is an emergency, no one can say that there is no dispute lik•.;ly to cause a breach of the peace . Let us examine if a comparative study of the provisions as they stood, before 1955 a"nd after 1955 under the old Code and as they now stand under the 1973 Code lead us to a conclusion other than that indicated in the preceding paragraph. From the comparative table of the provisions, it is seen that there were two principal changes ma<le by the 1955 amendment. The first was that the preliminary order was also to require the parties to put in documents and the affidavits of such persons as they ibtended to rely upon in support of their c1aims. The magistrate was to decide the case on a consideration of the written statements the documents and the affidavits put in by the parties and after hearing them.

The position eariler was that the parties had the right to adduce evidence and the magistrate could take further evidence if he so desired. The second change was that in· the two situations where he was unable to satisfy himself as to which of •the parties was in possession or where he decided that none of the partie~.> was in possession, after attaching the property, the magistrate was himself to refer the dispute to the Civil Court instead of leaving it to the parties to go to the Civil Court. He was to obtain the ·finding of the Civil Court and thereafter conclude the proceeding under Sr~ction 145 Criminal Procedure Code in conformity with the decision of the Civil Court. The ,revised procedure introduced by the 1955 amendment was not found to work satisfactorily and, therefore, it was, apparently, thought desirable to revert to the old procedure.

The provisions of Sections 145 and 146 of the 1973 Code are substantially the same as the corresponding provisions before the 1955 amendment. The only notio.;able change is that the second proviso to Section 145(4) (as it stood before the 1955 amendment) has now been transposed to Section 146 but without the words "pending his docision under this Section" and with the words "at any tim:: after making the order under Section 145 ( 1)" super-added, The change, clearly, is in the interests of convenient draftsmanship. All situations in which an attachment may b.; made are now mentioned together in Section 146. The words "pending his decision under this section" have apparently been omitted as unnecessary since Section 145 provides how the proceeding initiated by a preliminary order must pro- 8 ceed and end and therefore an attachment made 'at any time after making under Section 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 Section 145( 6) and withdraw the attachment as provided in Section 146(1) since there ca'n ~ no dispute likely to cause a breacl1 of the peace once an order in terms of Section 145(6) is made. In our view, it is wrong to hold that !he magistrate's Jurisdiction ends as soon as an attachment is made on the ground of emergency. A large 'number of cases decided by several High Courts some taking one view and the other a different view were read to us. We do not consider it necessary to refer to them except to acknowledge that we derived considerable assistance from the judgment of Lahiri, J., in Kshetra Mohan Sarkar v. Paran Chandra Mandal(l), in arriving at our conclusion. We may also add that the question now at issue did not arise for consideration in Chandu Naik & Ors. v. Sitaram B. Naik & Anr. (supra).

What was decided there was that a proceeding under Section 145 Criminal Procedure Code did not abate because of Section 8 of the Maharashtra Vacant Land (Prohibition of unauthorised Occupation and Summary Eviction) Act, 1975. In the result the aptx!al is dismissed. P.B.R. Appeal dismissed. (1) 1978 Crl. L. J. 936.