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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Charanjit Talwar
  • B.B.Lal
  • R.K.Mathur
Judges
  • Vyas Dev Misra, J.
Acts
  • Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred
  • Section 146 of the Code of Criminal Procedure, 1898 (hereinafter referred
  • Act 26 of 1955, Section 146 read as under:146 (1)
  • Section 145 of the Code of Criminal Procedure.
  • sub-section (4) of Section 145 of the old Code
  • sub-section (1) of Section 146 of the new Code.
  • subsection (1) of Section 145 of the new Code.
  • sub-section (IB) of Section 146
  • Act 26 of 1955 in Section 145.
  • sub-section (4) of Section 145
  • sub-section (1) of Section 145
  • sub-section (1) of Section 146
  • Section 145 of the new Code
  • discharged.5. Sub-section (1)
  • Section 146(1).11.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Charanjit Talwar
  • B.B.Lal
  • R.K.Mathur
Judges
  • Vyas Dev Misra, J.
Acts
  • Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred
  • Section 146 of the Code of Criminal Procedure, 1898 (hereinafter referred
  • Act 26 of 1955, Section 146 read as under:146 (1)
  • Section 145 of the Code of Criminal Procedure.
  • sub-section (4) of Section 145 of the old Code
  • sub-section (1) of Section 146 of the new Code.
  • subsection (1) of Section 145 of the new Code.
  • sub-section (IB) of Section 146
  • Act 26 of 1955 in Section 145.
  • sub-section (4) of Section 145
  • sub-section (1) of Section 145
  • sub-section (1) of Section 146
  • Section 145 of the new Code
  • discharged.5. Sub-section (1)
  • Section 146(1).11.
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The petition is brought under Section 482 of the Code of Criminal Procedure, 1973 and Article 227 of the Constitution challenging an order passed by an Additional Sessions Judge in revision. The parties are closely related: Hakim Singh (petitioners' principal) is the uncle of the respondent; petitioners Nos. 2 and 3 are the sons of Hakim Singh. The dispute concerns possession of a shop (No. 1980, Gali Paraunthewali, Delhi).

The police recommended action under Section 145 CrPC. A Sub-Divisional Magistrate (SDM) passed a preliminary order on 5 April 1974 under subsection (1) of Section 145 (new Code). During the proceedings a violent clash occurred on the night of 30/31 May 1974 with six persons injured. The SDM, treating the situation as an emergency, ordered attachment of the shop under sub-section (1) of Section 146 (new Code).

Parallel civil proceedings were initiated: petitioners filed a suit on 30 May 1974 and obtained an injunction restraining respondent No.1 from interfering with their possession; respondent filed a suit on 31 May 1974 and obtained an injunction restraining the petitioners from interfering with his possession. By an order dated 6 May 1975 the SDM declared the petitioners entitled to possession and directed police to unseal the shop and hand it over to the petitioners.

The respondent challenged the SDM's order in revision. The Additional Sessions Judge held that once the SDM had ordered attachment under sub-section (1) of Section 146 (new Code), the SDM was obliged to await the decision of a competent court determining the parties' rights and could not take further action; accordingly the shop was directed to remain under attachment. The petitioners challenged the Additional Sessions Judge's revision order by the present petition.

Legal Issues Presented

  1. Whether, after ordering attachment under sub-section (1) of Section 146 (new Code), the Sub-Divisional Magistrate could proceed further under Section 145 (new Code) to decide and give possession of the subject-matter to a party.
  2. How the amendments and legislative changes to Section 146 (old Code and new Code) and Section 145 (old Code and new Code) affect the Magistrate's powers in relation to attachment, reference to Civil Courts, and emergency attachments.
  3. Whether the Additional Sessions Judge was justified in setting aside the SDM's order directing unsealing and handing over possession and directing that the shop remain under attachment.

Arguments of the Parties

Petitioners' Arguments

  • Mr. R.K. Mathur, counsel for the petitioners, contended that the Sub-Divisional Magistrate was justified in proceeding under Section 145 after having attached the property under Section 146(1).
  • He further contended that although the new Code introduced material change in Section 146 of the old Code, the legislature did not debar the Sub-Divisional Magistrate from determining who should be given possession of the subject of dispute.

The opinion does not contain a detailed account of the respondent's legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeds by a close textual and historical examination of Sections 145 and 146 as they existed in the old Code, as amended in 1955, and as reenacted or restructured in the new Code. The judge traces three stages:

  1. Description of Section 146 before the 1955 amendment: The pre-1955 Section 146(1) allowed the Magistrate to attach the subject of dispute until a competent court determined the rights of the parties where the Magistrate could not decide which party was in possession (or if none was in possession). The section's object was described as placing the subject of dispute in custodia legis to prevent parties from creating a breach of the peace until a competent court decided their rights. Importantly, the Magistrate was not given power to refer the question to a Civil Court; the expectation was that the parties would approach a competent court themselves.
  2. Effect of the 1955 amendment (Act 26 of 1955): That amendment required the Magistrate to draw up a statement of facts and forward the record to a Civil Court of competent jurisdiction to decide the question of possession (Section 146(1) as amended). New sub-sections provided for the Civil Court to peruse evidence, take further evidence, decide possession within a practicable three-month period (sub-section (1-B)), and to transmit its finding to the Magistrate who would then dispose of the Section 145 proceeding in conformity with that decision. The amendment therefore created a mechanism for the Magistrate to refer the question to a Civil Court, with statutory limitations (including bar on appeal from such finding under sub-section (1-D)).
  3. Re-enactment in the new Code and its consequences: The new Code largely reinstated the pre-1955 form of Section 146, with the addition that the Magistrate could attach the subject in cases of emergency after making orders under sub-section (1) of Section 145. At the same time, the new Code removed the proviso in sub-section (4) of Section 145 (old Code) that had empowered the Magistrate to attach in emergencies; that emergency power was placed in Section 146(1) instead. The court reasons that the legislature's intent in these changes was to remove the Magistrate's statutory duty to refer disputes to a Civil Court and instead leave parties to approach competent courts for the determination of their rights. The court emphasizes that Section 146 is preventive—its purpose is to prevent breach of the peace by placing the property under custodia legis.

From these textual and historical observations the court draws the following legal conclusions (as reflected in the opinion):

  • Once the Magistrate takes action under sub-section (1) of Section 146 (i.e., attaches the subject of dispute), he cannot proceed further under Section 145 to determine or give possession; instead he must await a determination by a competent court (or the parties must approach a competent court) — the proceedings under Section 145 come to an end upon attachment.
  • The attachment under Section 146 is a preventive measure; the Magistrate's continuing powers after attachment are limited principally to looking after the property and, if necessary, appointing a receiver under sub-section (2) of Section 146.
  • Because of this legal structure, the Additional Sessions Judge was correct to hold that after attachment under Section 146(1) the SDM could not unseal and hand over possession; accordingly, the SDM's order to that effect was properly set aside and the shop ordered to remain under attachment.

Holding and Implications

Holding: The application is dismissed and the court affirms that the Additional Sessions Judge was justified in setting aside the Sub-Divisional Magistrate's order. The opinion's core ruling is: APPLICATION DISMISSED.

Implications:

  • Direct effect on the parties: The Sub-Divisional Magistrate's order directing that the shop be unsealed and handed over to the petitioners was set aside; the Additional Sessions Judge's view that the property must remain under attachment after an order under Section 146(1) stands.
  • Scope of Magistrate's powers: The decision confirms the court's interpretation that attachment under Section 146 (new Code) is a preventive measure which precludes the Magistrate from proceeding under Section 145 to determine possession once attachment has been made; the Magistrate's remaining powers are principally to safeguard the property and, if necessary, appoint a receiver.
  • Broader precedent: The opinion does not discuss or announce any broader legal principle beyond the immediate interpretation and application of Sections 145 and 146 to the facts of this case. No new principle of law is articulated as a novel precedent beyond the interpretative conclusions applied to these provisions.
Show full summary ...

    Hakim Singh And Others v. Girwar Singh And Others

    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.

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    Comments

    Hakim Singh And Others v. Girwar Singh And Others
    (Sep 5, 1975)