1. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code), and Article 227 of the Constitution challenging the order passed by an Additional Sessions Jude in revision.
2. The parties to the dispute are closely related. Hakim Singh petitioner is the uncle of the respondent, whereas petitioners Nos. 2 and 3 are the sons of Hakim Singh. A dispute arose between the parties about the possession of shop No. 1980, Gali Paraunthewali, Delhi. The matter was reported to the police which recommended action under Section 145 of the Code of Criminal Procedure. The Sub-Divisional Magistrate passed a preliminary order on April 5, 1974, under subsection (1) of Section 145 of the new Code. During the pendency of the proceedings there was a violent clash between the parties on the night between 30/31st May, 1974, in which six persons sustained injuries. The Sub-Divisional Magistrate, considering it a case of emergency, passed orders for the attachment of the shop under sub-section (1) of Section 146 of the new Code. It may be noticed that the petitioners had filed a suit on May 30, 1974, and had obtained an injunction against respondent No. 1 restraining him from interfering with their possession. On May 31, 1974, the respondent had filed a suit and had obtained an injunction restraining the petitioners from interfering with his possesson. By an order dated May 6, 1975, the Sub-Divisional Magistrate declared the petitioners to be entitled to the possession of the shop and directed the police to unseal the shop and hand over its possession to the petitioners. The respondent went in revision against this order and an Additional Sessions Judge came to the conclusion that after the Sub-Divisional Magistrate had ordered the attachment under sub-section (1) of Section 146 of the new Code he had to await the decision of a competent court determining the rights of the parties and could not take any further action. The shop was, therefore, directed to remain under attachment.
3. Mr. R.K Mathur, learned counsel for the petitioners, contends that the Sub-Divisional Magistrate was justified in proceeding under Section 145 after having attached the property under; Section 146(1). He also contends that though the new Code has brought in a material change in Section 146 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the old Code), the legislature has not debarred the Sub-Divisional Magistrate from determining as to who should be given the possession of the subject of dispute.
4. In order to appreciate the changes which have been made by the new code in section 146 it is necessary to take note of the changes which have been brought from time to time in this section. section 146 of the old code before its amendment by act 26 of 1955 was in the following terms:
146. (1) If the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself 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, 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.”
5. Sub-section (1) empowered the Magistrate to attach the subject of dispute until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof if he could not decide as to which of the party was in possession or if he came to the conclusion that none of the parties was in possession of the subject-matter in dispute. The. object of the section was to place the subject of dispute under custodia legis in order to prevent the parties from attempting to take possession and thus creating a breach of peace until the decision of a competent court about the rights of a party. No power was given to the Magistrate to refer the matter to a Civil Court for determination of the question as to who was in possession of the property. It was expected that after the subject of dispute is attached the parties will be forced to get a decision of their right from a competent Court.
6. After amendment by act 26 of 1955, Section 146 read as under:
“146 (1) If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he 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.
(1-A) On receipt of any such reference, the Civil Court shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider the effect of all such evidence, and after hearing the parties, decide the question of possession so referred to it.
(1-B) The Civil Court shall, as far as may be practicable, within a period of three months from the date of the appearance of the parties before it, conclude the inquiry and transmit its finding together with the record of the proceeding to the Magistrate by whom the reference was made: and the Magistrate shall, on receipt thereof proceed to dispose of the proceeding under Section 145 in conformity with the decision of the Civil Court.
(1-C) The costs, if any, consequent on a reference for the decision of the Civil Court, shall be costs in the proceedings under this section.
(1-D) No appeal shall lie from any finding of the Civil Court given on a reference under this section nor shall any review or revision of any such finding be allowed.
(1-E) An order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction.
(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, 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.”
7. Vital changes were made by this amendment. Though the conditions, under which attachment under sub-section (1) could be made by the Magistrate, remained the same, the Magistrate was required to 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 of possession. The Civil Court was to transmit its decision to the Sub-Divisional Magistrate who was required to dispose of the proceeding pending under Section 145 in conformity with that decision. In other words, instead of leaving the parties to approach a Court of competent jurisdiction to have their rights decided, it was expected that the reference by the Magistrate to the Civil Court would result in quicker disposal since the Civil Court under sub-section (IB) of Section 146 was expected to conclude the inquiry and transmit its finding within a period of three months.
8. It may be noticed that once the Magistrate takes action under sub-section (1), he cannot proceed under section 145 but has to await the decision of the Civil Court for disposing of the proceedings. To this extent the amendment made no change in the old section.
9. Now the proviso to sub-section (4) of Section 145 of the old Code empowering the Magistrate to attach the subject of dispute at any time if he considered the case to be one of emergency was not affected by the amendment made by Act 26 of 1955 in Section 145. This proviso was in the following terms:
“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.”
10. In other words the attachment could be made either under Section 145(4) or under Section 146(1).
11. The new code changed section 146 of the old code by practically reenacting the old section before its amendment by act 26 of 1955. Now it reads thus:
“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.
(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 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:
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.”
12. It will be noticed that sub-section (1) is practically in the same terms as it was in the old Code before its amendment by act 26 of 1955 except the addition of one more condition under which the subject of dispute could be attached by the Magistrate. Now, Section 145 of the new Code has done away with the aforementioned proviso to sub-s. (4) under the old Code enabling the Magistrate to attach the subject of dispute. But similar provision has been added to sub-section (1) of Section 146 empowering the Magistrate to attach the property if he considers the case to be one of emergency. The intention of the legislature in making these changes is obvious. It has taken away the powers of the Magistrate to refer the dispute to a Civil Court and has left the parties to approach the competent Court for the determination of their rights. After all Section 146 is a preventive measure in order to prevent a breach of the peace. This object is satisfied the moment the Magistrate decides to attach the subject of dispute. Once he has made the attachment the proceedings pending under Section 145 come to an end. He can later on withdraw the attachment if he feels satisfied that the likelihood of breach of the peace no longer exists. But then all the proceedings will come to an end since the object to prevent breach of the peace will have been achieved. In case the attachment continues the Magistrate's only power is to appoint a receiver and thus act under sub-section (2).
13. I find that the learned Additional Sessions Judge was justified in setting aside the order of the Sub-Divisional Magistrate and giving the necessary directions. The application is, therefore, dismissed.
14. Application dismissed.