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Smart Summary

Summary of Opinion by H.N. Kapoor, J.

Factual and Procedural Background

This petition under Section 482, Cr.P.C. sought quashing of proceedings before the Sub-Divisional Magistrate (Naugarh, district Basti) under Section 145, Cr.P.C. The dispute concerned premises where a school called Amar Bal Vidya Mandir (Barhni Bazar) was being run since 1971. The managing committee running the school included the present applicants (also described as the second party), among them the village Pradhan Chandi Prasad.

The first party (now opposite parties) consisted of Balmukund Giri (since deceased), Ora Prakash Kanodia and Haripati Tripathi. They claimed the building belonged to Balmukund Giri, who allegedly held a patta for the land for about thirty years, had started the school in 1971 and later (in 1974) executed a registered deed forming another managing committee (including opposite parties 1 and 2) and renaming the school Adharshya Amar Bal Vidya Mandir.

Both groups ran parallel schools and police reports indicated an apprehension of breach of the peace. The Magistrate passed a preliminary order dated 22-7-1974 and commenced proceedings under Section 145, Cr.P.C. A subsequent police report (3-11-1974) asserted no apprehension of breach, but another report dated 2-12-1974 (copy not produced) stated there was apprehension and the matter was of grave emergency. On 4-12-1974 the Sub-Divisional Magistrate ordered attachment of the school building under Section 146(1), Cr.P.C. Despite the attachment, the Magistrate continued proceedings under Section 145 with a view to pass a final order. The petitioners moved under Section 482 to quash those proceedings.

Legal Issues Presented

  1. Whether, after the Magistrate has attached property under Section 146(1), Cr.P.C. (New), he retains jurisdiction to continue proceedings under Section 145, Cr.P.C. beyond making inquiries limited to whether an apprehension of breach of the peace still exists.
  2. Whether the expression "competent court" in Section 146(1), Cr.P.C. includes the Magistrate seized of the Section 145 proceedings (i.e., whether the Magistrate is a "competent court" that can finally determine rights to possession once attachment is ordered).
  3. Whether an attachment made on the ground of "emergency" (as opposed to the other grounds enumerated in Section 146(1)) may be treated differently so as to permit the Magistrate to proceed to the final adjudication under Section 145 without reference to a civil/revenue/other competent court.
  4. Whether the dispute (concerning administration and ownership/possession of the school premises) falls within the scope of Section 145, Cr.P.C. or is purely civil in nature and should be left to a civil forum.

Arguments of the Parties

Petitioners' Arguments

  • After an attachment under Section 146(1), Cr.P.C. (New) is made, the Magistrate lacks jurisdiction to continue proceedings under Section 145, Cr.P.C., except to inquire whether an apprehension of breach of the peace continues to exist; the attachment must continue until rights are determined by a competent court exercising civil jurisdiction.
  • It was open to the Magistrate only to make the limited inquiry mentioned in the proviso to Section 146(1) and to withdraw attachment if satisfied that there was no longer a likelihood of breach of the peace.
  • The proceedings under Section 145 were illegal from the outset and attachment should not have been made because the dispute related to administration of the school (an argument relying on the precedent Onkar Nath Tiwari v. Ram Unjer Misra, 1973 Cr. L.J. 1885).

Opposite Parties' and State's Arguments

  • Counsel for the opposite parties (Sri V.S. Jauhari) contended that where attachment is ordered on the ground of "emergency", the Magistrate may proceed with Section 145 and pass a final order; the emergency-ground attachment can be made during the continuance of Section 145 proceedings and does not necessarily halt those proceedings. He relied on Marwari Primary Vidyalaya v. S.D.M., Deoria (1975 A.L.R. 235) and a passage of Bakshi, J. suggesting that Sections 145(1) and 146(1) allow such interim orders in emergency during the continuance of Section 145 proceedings.
  • Counsel for the State (Sri Kazmi) argued that the phrase "competent court" in Section 146(1) includes the Magistrate seized of the Section 145 proceedings, and therefore the Magistrate could be the forum to determine the rights of the parties even after attachment. He emphasized that under the old Code Section 145(4) used the term "civil court" and suggested that interpreting "competent court" to exclude the Magistrate would render other provisions redundant.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Onkar Nath Tiwari v. Ram Unjer Misra, 1973 Cr. L.J. 1885 Cited by petitioners for the proposition that disputes about administration of an institution/school cannot be treated as a dispute within Section 145, Cr.P.C. (i.e., should not attract attachment/proceedings under Section 145). The court considered the petitioners' reliance but observed that in the present case there was a dispute about possession and ownership of the building itself (a claim of private property by Balmukund Giri), so the simple administration argument did not conclusively support quashing on that ground.
Marwari Primary Vidyalaya v. S.D.M., Deoria, 1975 A.L.R. 235 Invoked by opposite parties to support the view that Sections 145(1) and 146(1) read together allow a Magistrate to pass an interim order (attachment) during the continuance of Section 145 proceedings if he considers the case one of emergency. The court reviewed the decision, noted the quoted observation from Bakshi, J., but rejected the contention that the Marwari case held that proceedings under Section 145 must continue after an attachment on the ground of emergency. The court held the Marwari observation did not establish that a Magistrate may proceed to final adjudication after attachment; instead, attachment triggers the consequences of Section 146(1).

Court's Reasoning and Analysis

The court confined its detailed consideration to the legal effect of an attachment made under Section 146(1), Cr.P.C. (New). It reproduced Section 146(1) and considered competing interpretations advanced by counsel.

First, the court addressed the petitioners' plain-language argument that once attachment under Section 146(1) is made the property may be released only after the rights of the parties are determined by a "competent court," and that the Magistrate's role thereafter is confined to the limited inquiry permitted by the proviso (i.e., whether there is no longer likelihood of breach of the peace).

The court then examined the opposite parties' argument that an attachment on the ground of "emergency" may be treated differently — i.e., that when attachment is ordered for emergency the Magistrate may proceed with Section 145 to a final order. The court rejected that distinction: while Section 146(1) allows an attachment to be made at any stage of the Section 145 proceedings if the Magistrate considers the case one of emergency, the cited authority (Marwari Primary Vidyalaya) did not hold that proceedings under Section 145 must or may continue to final adjudication once attachment has been made.

The court then considered the State's submission that the term "competent court" in Section 146(1) should include the Magistrate so that the Magistrate himself could finally determine the rights after attachment. The court rejected this interpretation for several reasons found in the text:

  • The code as enacted distinguishes the "Magistrate" from a "competent court." The latter term was deliberately used instead of the older wording "civil court" to encompass courts (civil, revenue, consolidation, or other courts by different names in different States) competent to determine rights to possession and title.
  • A Magistrate in Section 145 proceedings adjudicates possession only for a limited purpose: possession at the time of making the preliminary order or within two months prior to the date on which police information was received. Such limited adjudication does not equate to a full determination of rights or title.

The court concluded that once the Magistrate attaches property under Section 146(1), the attachment must ordinarily continue until the rights of the parties are determined by a competent court (civil or other competent forum able to adjudicate title). The Magistrate's continuing power after attachment is only to withdraw the attachment if he becomes satisfied that there is no longer any likelihood of breach of the peace (the proviso to Section 146(1)).

Holding and Implications

Core Ruling: The petition is allowed; the Magistrate's order dated 23-4-1975 (Annexure 5) is quashed and the Magistrate is directed not to proceed further under Section 145, Cr.P.C. except for the narrow purpose of inquiring whether there is no longer any likelihood of breach of the peace with regard to the subject of dispute.

Direct consequences and instructions given by the court (as stated in the opinion):

  • The attachment ordered under Section 146(1), Cr.P.C. must continue until the rights of the parties are determined by a competent court of civil (or other appropriate) jurisdiction that can decide title/possession.
  • The Magistrate may withdraw the attachment only if he is satisfied that there is no longer any likelihood of breach of the peace in relation to the dispute; only upon such satisfaction may he withdraw attachment and drop the proceedings.
  • The Magistrate is specifically prohibited from proceeding further with the case under Section 145, Cr.P.C. to decide the rights of the parties after having attached the property (except for the limited inquiry about breach of peace noted above).

The opinion ends with the succinct result: "Petition allowed."

Show full summary ...

    Chandi Prasad v. Om Prakash Kanodia

    H.N Kapoor, J.:— This petition has been filed under Sec. 482, Cr. P.C for quashing the proceedings before the Sub-Divisional Magistrate, Naugarh, district Basti under Sec. 145, Cr. P.C A dispute arose in respect of the premises in which a school was being run in Barhni Bazar in the name of Amar Bal Vidya Mandir. It was being run since 1971 in the aforesaid name by the managing committee comprising of the present applicants including the Pradhan of the village, namely, Chandi Prasad. The applicants claimed that the school building was constructed on banjar land belonging to the Gram Sabha. The applicants were described as the second party. The first party consisted of Balmukund Giri (now dead). Ora Prakash Kanodia and Haripati Tripathi. They are now the opposite parties. They claimed that the building was constructed on the land belonging to Balmukund Giri which he had obtained on a patta thirty years back and that Balmukund Giri himself had started the school in the year 1971 and had appointed the first party as its managing body to run the school. But he felt dissatisfied and in 1974 he appointed another managing committee to run the school by means of a registered deed. That managing committee consisted of the persons who are opposite parties Nos. 1 and 2 in this petition besides Balmukund Giri himself. The name of the school too was changed into Adharshya Amar Bal Vidya Mandir. It appears that both the parties started running parallel schools and the police reported that there was an apprehension of the breach of the peace. The learned Magistrate then passed the preliminary order dated 22-7-1974 and started proceedings under Sec. 145, Cr. P.C Subsequently another station officer of Police Station Dhebarwa submitted another report dated 3-11-1974 to the effect that there was no longer any apprehension of breach of the peace. However, a third report was submitted by the station officer, Police Station Dhebarwa dated 2-12-1974 to the effect that there was an apprehension of breach of the peace and the case was of grave emergency. A copy of that report has not been filed by any of the parties. On the basis of that report, the Sub-Divisional Magistrate, Naugarh ordered attachment of the school building on 4th of December, 1974 considering the case as of grave emergency. However, even after passing this order, the learned Magistrate proceeded with the case under Sec. 145, Cr. P.C with a view to pass the final order under that section. The petitioners have filed this petition for quashing those proceedings.

    2. Sri G.P Mathur, learned counsel for the petitioners has argued that after the order of attachment was passed by the learned Magistrate under Sec. 146(1), Cr. P.C (New), he had no jurisdiction to continue with the proceedings under Sec. 145, Cr. P.C According to him, attachment was to continue until the rights of the parties were determined by a competent court exercising civil jurisdiction. He has conceded that it was open to the Magistrate to make an enquiry only for the purpose of finding out whether apprehension of breach of the peace still existed or not as the Magistrate could withdraw attachment at any time under the proviso to Sub-sec. (1) of Sec. 146, Cr. P.C (New). He has also argued that the proceedings under Sec. 145, Cr. P.C were illegal from the very beginning and no attachment should have been made as the dispute was only with regard to the administration of the school which cannot be considered to be a dispute within the meaning of Sec. 145, Cr. P.C as was held in the case of Onkar Nath Tiwari v. Ram Unjer Misra 1973 Cr. L.J 1885.. So far as the last argument is concerned, it may be observed that in the present case there is a dispute about the possession and ownership of the building itself as it was claimed to be his building by Balmukund Giri, who is now dead. He claimed it to be his private property and formed a trust by a registered deed appointing the opposite parties 1 and 2 as members of the managing committee.

    3. On the other hand the petitioners claimed that the school building was constructed on a banjar land by the former managing committee and that it was not the personal property of Balmukund Giri. The dispute does appear to be of civil nature which will have to be decided by a civil court.

    4. In the present case, I shall, therefore, confine myself to the effect of the attachment order passed under Sec. 146(1), Cr. P.C (New). Sec. 146(1), Cr. P.C (New) reads as follows:

    “146(1) — If the Magistrate of any time after making the order under Sub-sec. (1) of Sec. 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 Sec. 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.”

    5. Learned counsel for the petitioners has argued that on the plain reading of this section the property which has been attached under Sec. 146(1), Cr. P.C can be released only after the rights of the parties have been determined by a competent court and the Magistrate had no power to proceed further under Sec. 145, Cr. P.C except for the purpose of finding out whether there was still an apprehension of breach of the peace. Sri V.S Jauhari learned counsel for the opposite parties has argued that since the attachment was on the ground of emergency, it was open to the learned Magistrate to proceed further under Sec. 145, Cr. P.C According to him, it would have been a different matter if the attachment was on any of the other two grounds, that is, the Magistrate decided that none of the parties was then in such possession as referred to in Sec. 145, Cr. P.C or if he was unable to satisfy himself as to which of them was then in such possession of the subject of dispute. In that case he has conceded that attachment could have continued till the dispute was finally decided by some civil court, revenue court or such other competent court. I see no reason for drawing such distinction. The last clause, “he may attach ……… to the possession thereof” obviously governs all the three clauses including the clause when the attachment is made for emergency. Learned counsel for the opposite parties has referred to the case of Marwari Primary Vidyalaya v. S.D.M, Deoria 1975 A.L.R 235.. He has laid great stress on the following observation made by Bakshi, J. in that case:

    “Reading Secs. 145(1) and 146(1), Cr. P.C together the inference is obvious that both these sections empower the Magistrate to pass an interim order, during the continuance of the proceedings under Sec. 145(1), Cr. P.C or prior to the passing of the final order; if he considers the case of emergency.”

    6. His argument is that such an order on the argument of emergency can be passed during the continuance of the proceedings under Sec. 145(1), Cr. P.C which obviously means that the proceedings under Sec. 145(1), Cr. P.C are to continue. I do not agree with this contention. No doubt, the order of attachment on the ground of emergency can be passed at any stage during the continuance of the proceedings under Sec. 145(1), Cr. P.C but it has nowhere been held by the learned Judge that the proceedings under Sec. 145(1), Cr. P.C are still to continue after such an order of attachment is passed.

    7. Sri Kazmi, learned counsel for the State has raised another argument which was adopted by Sri Jauhari also. According to him, the words “competent court” occurring in Sec. 146(1), Cr. P.C would include the court of the Magistrate also which was seized of the case under Sec. 145, Cr. P.C and which could determine the rights of the parties with regard to the person entitled to the possession thereof. According to him there is thus no bar in the case of the Magistrate to continue the proceedings under Sec. 145, Cr. P.C and pass the final order even after the property has been attached on the ground of emergency. According to him, this can be the only way of reconciling the provisions of Sec. 145(4) Code of Criminal Procedure, 1898 with the provisions of Sec. 145(1), Cr. P.C (New). He has laid great stress on the fact that under Sec. 146(1) Code of Criminal Procedure of 1898 the word “civil court” was used and not “competent court”. His contention is that if this interpretation is not given to the word “competent court” appearing in Sec. 146(1) all other provisions of Sec. 145, Cr. P.C will become redundant after the Magistrate passes the order of attachment immediately after passing the preliminary order under Sec. 145(1), Cr. P.C

    8. We have to interpret the law as it stands. There is no provision for attachment under Sec. 145, Cr. P.C under the new Code similar to the provision of attachment under Sec. 145(4), Cr. P.C (Old). It is not necessary for a Magistrate to pass an order of attachment in every case. He can then proceed under Sec. 145, Cr. P.C and pass the final order. But as soon as he passes the order of attachment, consequences are to follow as provided under Sec. 146(1), Cr. P.C (New). The word “Magistrate” has been clearly used as something different than “a competent court”. Rights about possession are decided by revenue courts and consolidation courts apart from civil courts. In other States there may be courts known by different names. It is for this reason that the words “competent court” have been used instead of the words “civil court” which can determine the rights of the parties with regard to the person entitled to the possession. It follows that it must be with regard to the possession generally. A Magistrate under Sec. 145, Cr. P.C adjudicates about possession for a limited purpose only and confines himself to the question of possession at the time of the passing of the preliminary order or two months prior to the date on which the report of the police officer or other information was received by the Magistrate. In my opinion, there is no escape from the conclusion that after the Magistrate has attached the property, the attachment has to be continued until the rights of the parties are determined by a competent court of civil jurisdiction which can decide the title of the parties. The Magistrate can withdraw the attachment only when at any time he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.

    9. In the result the petition is allowed. The order of the learned Magistrate dated 23-4-1975 (Annexure 5) is quashed and he is directed not to proceed further with the case under Sec. 145, Cr. P.C except for the purpose of making an enquiry on the point whether there is no longer any likelihood of breach of the peace with regard to the subject of dispute. Only in case he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute, he can withdraw the attachment and drop the proceedings.

    10. Petition allowed.

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    Comments

    Chandi Prasad v. Om Prakash Kanodia
    (Jul 25, 1975)