ORDER
1. This petition is filed by the Second Party in Misc. Case No. H/19/81 on the file of the Sub-Divisional Magistrate, Hyderabad (East), to revise the orders of the Magistrate passed under Sections 145(1) and 146, Cr.P.C.
2. On 12th May, 1981, the Circle Inspector of Police, Saroornagar, Ranga Reddy district, placed information before the Magistrate that there was land dispute between the first party and the second party in respect of survey number 9/1 of Saroornagar village admeasuring 45 acres, that each party was claiming to be in possession of the land, that there were also criminal cases between the parties, that each party was trying to dispossess the other by indulging in violent activities and thus, there was every likelihood of breach of peace and public tranquillity, that the police were unable to control the situation even after posting police picket, and it was necessary that the disputed land be taken into the custody of the Court and action might be taken against both the parties. The Magistrate received the information on 13th May, 1981. He recorded the sworn statement of the Circle Inspector of Police on the same date. On the same date, after perusing the report and the sworn statement, the Magistrate endorsed on the report that he was satisfied that there was every likelihood of breach of peace on the land and hence directed issue of orders under Section 145(1) Cr.P.C. to both the parties. He also directed attachment of the lands under Section 146 Cr.P.C. On 19th May, 1981 the Magistrate issued the preliminary order under Section 145(1) Cr.P.C. against both the parties calling upon them to attend his Court on 15th June, 1981 to put in written statements of their respective claims. On the same date, he also issued orders attaching the property in dispute under Section 146 Cr.P.C. Questioning his two orders, the second party (M. S. Rahaman) has filed this revision.
3. It is submitted by the learned counsel for the petitioner that on the date when the order of attachment was made under Section 146(1) Cr.P.C., there was no preliminary order under Section 145(1) Cr.P.C. and, therefore, the order under Section 146(1) Cr.P.C. is without jurisdiction. This contention is patently incorrect. A perusal of the records show that, first, the Magistrate passed an order under Section 145(1) Cr.P.C. and thereafter under Section 146 Cr.P.C.
4. It is also submitted that both the orders could not be made simultaneously. In the first instance, this assumption is wrong. The first order was made under Section 145(1) Cr.P.C., and then the order under Section 146 Cr.P.C. was made. It is not necessary that there should be any time-lag between both the orders. (See V. K. Rao v. Chandappa. (1977) 79 Bom LR 16).
5. It is submitted by the learned counsel for the petitioner that the order passed by the Magistrate under Section 146(1) Cr.P.C., does not show that any of the conditions mentioned therein existed. That sub-section reads as follows :-
“146(1). If the Magistrate at any time after making the order under sub-section (1) of Section 145 considers the case to be 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 withdraw 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.”
6. The order passed by the learned Magistrate says that a dispute likely to cause a breach of peace exists between the parties concerning the land. It is true that he did not say in his order that he considered the case to be one of emergency for attaching the land. It is always desirable if the Magistrate mentions in his order the grounds for attachment. Otherwise, it will lead to the argument that he had passed the order without any of the conditions mentioned in the section existing. But, here we should understand the order of the Magistrate in the light of the report submitted by the Circle Inspector of Police. Basing on that report, the Magistrate had passed the order. The report clearly shows that there was every likelihood of breach of peace and public tranquillity, the police were unable to control the situation even after posting police picket and the situation was uncontrollable and, therefore, it was necessary that the land should be attached. In view of this report the Magistrate directed attachment. It means, he had considered the case to be one of emergency. If so one of the conditions for directing attachment of the land in dispute under sub-section (1) of Section 146 Cr.P.C. is satisfied.
7. The more substantial question that is raised in this revision is that, there is no provision in the Code for an interim attachment pending enquiry, that the attachment could be ordered only after holding enquiry and when once the Magistrate passes an order of attachment, his jurisdiction ceases to pass any order under Section 145 and thereafter the remedy rests only with the Civil Court. To substantiate this contention the learned counsel for the petitioner relied upon Dandapani v. Madan Mohan, 1976 Cri LJ 2014 (Orissa) and Mansukh Ram v. State, (1977 Cri LJ 563) (Raj). On the other hand, the learned counsel for the respondent submitted that an interim attachment could be ordered under Section 146(1) Cr.P.C. and he relied upon Cajitan D’souza v. State, 79 Bom LR 175 : (1977 Cri LJ 2032).
8. In order to decide this question it is necessary to the history of is necessary to refer to the history of the Sections 145 and 146 of the Cr.P.C. 1973. The old Code (1898) was in operation till the new Code of 1973 came into force. Sections 145 and 146 of the old Code were contained in Chap. XII under the heading “Disputes as to immovable property.” The provisions relating to “unlawful assemblies”. “public nuisances” and “temporary orders in urgent cases of nuisance or apprehended danger” were contained in Chaps. IX, X and XI respectively. These provisions have been recast under, the new Code and find a place in Chap. X under the main head “Maintenance of public order and tranquillity.” The third proviso to sub-section (4) of Section 145 of the old Code provided that if the Magistrate considers the case one of emergency, he might at any time attach the subject of dispute pending his decision under that Section. That proviso was deleted and included in S. 146(1) of the new Code. Under Section 146 Cr.P.C. as it now stands, the Magistrate has the power to attach the subject of dispute in three contingencies (i) if he considers the case to be one of emergency; (ii) if he decides that none of the parties was then in such possession as is referred to in S. 145 and (iii) if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute. So far as the first contingency is concerned, the power can be exercised by a Magistrate at any time after making the preliminary order under sub-section (1) of Section 145. With regard to the other two contingencies the Magistrate could exercise the power only at the termination of the proceedings under Section 145 and when he is unable to pass final order under sub-section (6) of Section 145. He could pass an order under Section 145(6) only after he comes to the conclusion that one of the parties was or should, under the proviso to sub-section (4) of Section 145, be treated as being in such possession of the subject matter of dispute. Then the Magistrate is bound to issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and he is also required to pass a further order forbidding all disturbance of such possession until such eviction. Even in a case where the Magistrate finds that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by him, or after that date and before the date of his order under Sub-section (1) of Section 145, the Magistrate has to restore possession to the party forcibly and wrongfully dispossessed.
9. Even under the old Code, under sub-section (1) of Section 146, power to attach the subject of dispute was conferred on the Magistrate in two situations, namely, (i) when he was of the opinion that none of the parties was at the material time in such possession; and (ii) if he was unable to decide as to which of them was then in such possession. But, there was a further provision which required the Magistrate to refer the matter to the Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the time of the order, as explained in sub-section (4) of Section 145. This power to make such a reference has been omitted in the new provision of Section 146. However, the proviso to sub-section (1) of Section 146 of the old Code is in substance retained and contained in the proviso to sub-section (1) of Section 146 of the new Code under which the Magistrate can withdraw 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. The result of the new provision is that it is for the parties to approach the Civil Court in the case of second and third contingencies referred to in Section 146(1) and get their rights determined.
10. It is true that if Section 146(1) is literally construed, it may prima facie lead to the conclusion that if at any stage during the proceedings under Section 145, the Magistrate considers the case to be one of emergency and attaches the subject of dispute, the only remedy of the parties is to get their rights determined in a competent Court or a Civil Court, and the powers of the Magistrate to proceed further under Section 145 would automatically come to an end. But, having regard to the scheme and ambit of Sections 145 and 146 of the new Code. I am of the opinion that both the Sections should be read together. The provisions of Section 146 are intended to subserve the object of a proceeding under Section 145, such object being to determine which party was in possession on the date of the preliminary order and to declare such party in possession to be entitled to retain possession until evicted therefrom in due course of law and forbidding all disturbances of such possession until such eviction. This object would be defeated if during the continuance of the proceedings, after a preliminary order is passed, the Magistrate considers the case to be one of emergency and attaches the property and has to close the proceedings on that ground.
11. The question can be viewed from another angle also. The first clause of sub-section (1) of Section 146 reads, if the Magistrate at any time after making the order under sub-section (1) of Section 145 considers the case to be one of emergency. Stopping there for a while, what is necessary is that, the Magistrate should have passed an order under sub-section (1) of Section 145; secondly, he must consider the case to be one of emergency. The second clause says that, if he decides that none of the parties was then in such possession as is referred to in S. 145. The third clause says that, if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute. It means that under these two clauses, he should decide after enquiry is completed under Section 145. A comparison of the wording of the three clauses shows that a Magistrate can pass an order of attachment, in case of emergency, after passing an order under Section 145(1) without holding an enquiry. Proviso to Section 146 also makes it clear that when the Magistrate makes an order of attachment after passing an order under sub-section (1) of Section 145, considering the case to be one of emergency, his jurisdiction does not cease, for that proviso says that the Magistrate may withdraw 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. If his jurisdiction ceases, the moment he passes an order of attachment, there is no question of his withdrawing his order thereafter, if he is satisfied that there is no longer any likelihood of breach of the peace. Similarly, he cannot cancel his order under sub-section (5) of Section 145, if it is shown by a party that no dispute exists or existed. Therefore, I am of the opinion that the last clause in new Section 146(1) “until a competent Court has determined the rights of the parties” qualifies only the second and third clauses but not the first clause of that sub-section. Consequently, I hold that the Magistrate does not become functus officio, the moment he posses an order of attachment before him on ground that an emergency has arisen. This is the view taken by a Division Bench of the Bombay High Court in Cajitan D’Souza v. State (1977 Cri LJ 2032) (supra) and I respectfully agree with that view.
12. On a strict and literal interpretation of Section 146(1), some of the High Courts have taken a view that when once the Magistrate passes an order of attachment considering it to be a case of emergency, he cannot further proceed in the matter, but must leave it to the Civil Court to decide the question of possession. After referring to Section 146(1) it was held by Orissa High Court in Dandapani v. Madan Mohan (1976 Cri LJ 2014) (supra) that the last two contingencies would arise only after inquiry is complete, that the Parliament has equated the first contingency, namely, after passing of a preliminary order, if the Magistrate is satisfied that it is a case of emergency at par with the other two contingencies, that no further inquiry is possible in the two other contingencies, and, therefore, an inquiry has to be held before passing the order in the case of emergency the order in the case of emergency also. It was further held that when once the Magistrate passes an order of attachment in the case of emergency then the proceedings under Section 145 terminate. I am not able to agree with this decision. The learned Judges have overlooked the wording of the first clause of sub-section (1) of Section 146. It speaks of two things. The Magistrate can attach at any time after making the order under sub-section (1) of Section 145. Secondly, he should consider the case to be one of emergency. Under the other two clauses, he can take action only after enquiry. If he were to hold enquiry even in the case of emergency then the very purpose is defeated.
13. In Chandi Prasad v. Om Prakash 1976 Cri LJ 209 it was held by a single Judge of the Allahabad High Court that when once order of attachment is made in a case of emergency, then the Magistrate cannot proceed further under Section 145. That conclusion is arrived at on the ground that the last clause in the sub-section governs all the three contingencies including that of emergency mentioned therein. It is so on a literal construction of the sub-section. But, I am of the opinion that those words should qualify only the second and third clauses but not the first clause. Therefore, I am not able to agree with that decision.
14. In Mansukh Ram v. State (1977 Cri LJ 563) (supra) it was held by the Rajasthan High Court that when once the Sub-Divisional Magistrate has attached the subject of dispute on the ground of emergency he cannot proceed further under Section 145, except for the purpose of ascertaining whether there is any dispute or whether there is no longer any likelihood of breach of the peace with regard to the subject of dispute, because, in that case he can withdraw the attachment at any time. After making an order of attachment in the case of emergency if the Magistrate cannot proceed further then. I do not see why he should ascertain whether there is any dispute and whether there is no longer any likelihood of breach of the peace, with regard to the subject of dispute. For the reasons already given by me. I am not able to agree with this decision.
15. In the result, I see no grounds to interfere with the proceedings of the Magistrate, and I dismiss this revision.
16. Revision dismissed.
