PETITIONER:
MATHURALAL
Vs.
RESPONDENT:
BHAWARLAL & ANR.
DATE OF JUDGMENT13/09/1979
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
DESAI, D.A.
CITATION:
1980 AIR 242 1980 SCR (1) 620
1979 SCC (4) 665
ACT:
Code of Criminal Procedure, 1973-Ss. 145 and 146-Scope
of-Magistrate if competent to proceed with enquiry after
attaching the property in dispute.
HEADNOTE:
Apprehending breach of peace on account of a dispute
over a house between the appellant and the respondent the
Sub-Divisional Magistrate passed a preliminary order under
s. 145(1), Cr.P.C., 1973 and later attached the subject
matter of dispute under s. 146(1) on the ground that it was
a case of emergency. The appellant's objection that once the
subject of the dispute had been attached under s. 146, he
was not competent to proceed with the enquiry under s. 145
was overruled by the Magistrate. Having failed in his
revision petitions before the Sessions Judge and the High
Court the appellant preferred an appeal to this Court.
It was contended on behalf of the appellant that while
under the previous Code it was permissible to attach the
subject of dispute pending enquiry by the Magistrate as
contemplated by s. 145 such attachment pending decision by
the Magistrate was not permissible under the present Code
and that once the Magistrate effected an attachment he had
nothing further to do except await the decision or the
direction of the civil court.
Dismissing the appeal,
^
HELD: It is wrong to say that the Magistrate's
jurisdiction ends as soon as an attachment is made on the
ground of emergency. [632 C]
1. (a) 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 s. 146 is torn out of its setting and
read independently of s. 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 resolved by a competent Court and not by the
Magistrate effecting the attachment. But s. 146 cannot be so
separated from s. 145. It can only be read in the context of
s. 145. Contextual construction must prevail over
isolationist construction. That is one of the first
principles of construction. [629 A-C]
(b) On being satisfied about the existence of a dispute
likely to cause a breach of peace, the Magistrate issues a
preliminary order stating the grounds of his satisfaction
and calling upon the parties to appear before him and submit
their written statement. On perusal of the written
statements he would proceed to record evidence to decide
which of the parties was in possession on the date of the
preliminary order. If he decides that one of the parties was
in possession he declares possession of such party. If on
the other
621
hand he is unable to decide who was in possession or if he
is of opinion 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
property. 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 deciding in one of three ways and making
consequential orders. [630 A-D]
(c) The Magistrate may, however, stop the proceedings
at any time if one or the other of the parties satisfies him
that there has never been or that there is no longer any
dispute likely to cause a breach of the peace. The
Magistrate then cancels the preliminary order vide s. 145(5)
except in this event a proceeding initiated by a preliminary
order under s. 145(1) must run its full course. [630 E]
(d) One of the situations provided under s. 146(1) is
that in a case of emergency a Magistrate may attach the
property at any time after making the preliminary order.
There is no express stipulation in s. 146 that the
jurisdiction of the Magistrate ends with the attachment. Nor
is it implied. The obligation to proceed with the enquiry as
prescribed by s. 145(4) is against any such implication.
[630 G]
2. The position under the section before its amendment
in 1955 was that the parties that the right to adduce
evidence and the Magistrate could take further evidence if
he so desired. There were two principal changes in the
section as a result of the amendment in 1955: (1) the
preliminary order was also to require the parties to put in
documents and affidavits of such persons as they intended to
rely upon in support of their claims. The Magistrate was to
decide the case on a consideration of the written
statements, the documents and affidavits put in by the
parties and after hearing them come to a conclusion. (2)
Where he was unable to satisfy himself as to which of the
parties was in possession or where he decided that none of
the parties 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 a finding of the civil court
and thereafter conclude the proceeding under s. 145 in
conformity with the decision of the civil court. The revised
procedure having been found to be unsatisfactory ss. 145 and
146 were again amended so as to revert to the position
obtaining before the 1955 amendment. In the present s. 146
all situations in which an attachment may be made are now
mentioned together. [631 D-F]
Chandu Naik & Ors. v. Sitaram B. Naik & Anr. [1978] 2
SCR 353=1978 Crl. L. J. 356 distinguished.
Kshetra Mohan Sarkar v. Puran Chandra Mandal, 1978 Crl.
L.J. 936, approved.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 10
of 1979.
Appeal by Special Leave from the Judgment and Order
dated 12-10-1978 of the Madhya Pradesh High Court in
Criminal Revision No. 336 of 1978.
622
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 dispute
between Mathuralal and Bhanwarlal concerning a house
situated in Kambalpatti, Ghas Bazar, Ratlam, which was
likely to cause a breach of the peace, the Sub Divisional
Magistrate, Ratlam, passed a preliminary order under Section
145(1) of the Code of Criminal Procedure 1973, on Ist March,
1978. On 2nd March, 1978, the learned Magistrate attached
the subject of dispute under Section 146(1) Criminal
Procedure Code considering the case to be one of emergency.
Thereafter, when the learned Magistrate wanted to proceed
with the enquiry under Section 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 Revisions taken before the Sessions Judge and the
High Court having borne no fruit, Mathuralal has filed the
present appeal by special 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 Chandu Naik & Ors. v. Sitaram B. Naik & Anr.(1)
Shri Mukherji, learned counsel for the appellant urged
that under Section 146 of the Criminal Procedure Code of
1973, an 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 Section 145, or (iii) if he was unable to
satisfy himself as to which of them was then in such
possession of the subject of dispute. The attachment so
effected, regardless of the situation consequent upon which
it was effected, was to subsist until a competent Court
determined the rights of 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 present 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
623
attention to the circumstance that the third proviso to
Section 145(4) of the old Code empowered the Magistrate, if
he considered the case one of emergency, to attach the
subject of dispute pending 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
any and which of the parties was in possession of the
subject of dispute. Therefore, he said, under the previous
Code, in the case of attachment because 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, under 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 enquiry by the Magistrate as contemplated by
Section 145, such attachment pending decision by the
Magistrate was not permissible under the provisions of the
present Code. According to him so soon as the Magistrate
effected an attachment he had nothing further to do except
await the decision or the directions 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 this stage to
extract the provisions of Sections 145 and 146, to the
extent that they are relevant, in the Code of 1898 before it
was amended in 1955, in the Code of 1898 after it was
amended in 1955 and in the Code of 1973:
624
(a)
145 (1) Whenever a District Magistrate, Sub-divisional
Magistrate or Magistrate of the first class is satisfied
from a police report 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
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 subject of 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 be
(b)
145 (1) Whenever a District Magistrate, Sub-divisional
Magistrate or Magistrate of the first class is satisfied
from a police report 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 evidence of such 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 direct, and at least
one copy shall be
(c)
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 land 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 a specified date and
time, and to put in written statements of their respective
claims as respects the fact of actual possession of the
subject of 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 be
625
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, respectively, consider the effect of such
evidence, 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 before mentioned in
such possession of the said subject:
Provided 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 this 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,
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 him and, if possible,
decide the question whether any and which of the parties was
at the date of the order before mentioned in such possession
of the said subject:
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 this 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 sub-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 any other person interested, from
showing that no such dispute as aforesaid exists
626
(a)
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 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.
(7)……..
(8)……..
(9)……..
(10)……..
(146) (1) If the Magistrate descides that none of the
parties was then in such possession, or is unable to satisfy
himself
(b)
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 possession, of the subject of
dispute, he
(c)
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) (a) If the Magistrate decides that 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
627
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.
(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 Court appoint a receiver thereof, may attach it, and
draw up a statement of the facts of the case and forward the
record of the proceeding to a 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 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 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.
(1A)…….
(1B)…….
(1C)…….
(1D)…….
(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 Court appoint a receiver thereof, 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 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.
(2) When the Magistrate attaches the subject 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 he considers proper for
628
(a)
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 discharge.
(b)
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 discharge.
(c)
looking after the property or if he thinks fit, appoint a
receiver thereof, who shall have, subject to the control of
the Magistrate 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 appointed by the Civil Court and shall thereafter
discharge the receiver appointed by him;
(b) may make such other incidental or consequential
orders as may be just.
629
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 read 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 resolved by a competent
Court and 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. Otherwise, it may mislead. That is one of the
first principles of construction. Let us therefore look at
Section 145 and consider 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 an 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 basic to a proceeding
under Section 145 that a failure to draw up a preliminary
order 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 has 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 order is required to enjoin the
parties not only to appear before the Magistrate on a
specified 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) casts 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
630
under which he may attach the subject of dispute until the
determination of the rights of parties by a competent Court.
The scheme of Sections 145 and 146 is that the Magistrate,
on being satisfied about the existence 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 peruse the statements, to
receive and to take evidence and to decide which of the
parties was in possession on the date of the preliminary
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 deciding in one of three ways and making
consequential orders. There is no half way house, there is
no question of stopping in the middle and leaving the
parties 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 been 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 peace and as provided by Section
145(5), a proceeding 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 obligation
to proceed with the enquiry as prescribed 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 whole exercise of stating the grounds of
his satisfaction and calling upon the parties to appear
before him and 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 145(1). There is no reason why we should adopt a
construction which will lead to
631
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
Section 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 likely to cause a
breach of the peace.
Let us examine if a comparative study of the provisions
as they stood, before 1955 and 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 made 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 intended to rely upon in
support of their claims. 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 earlier 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 parties 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 Section 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 noticeable 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 decision
under this Section” and with the words “at any time 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 be
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-
632
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 can be no dispute likely to cause
a breach of the peace once an order in terms of Section
145(6) is made.
In our view, it is wrong to hold that the 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(1), 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 appeal is dismissed.
P.B.R. Appeal dismissed.
633
