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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Hon'ble Mr. Justice K. M. Lahiri
  • Hon'ble Mr. Justice D. Pathak
Acts
  • Section 8 of the Maharashtra Vacant Land (Prohibition of Unauthorised Occupation and Summary Eviction) Act. 1975.
  • Section 145(4) of the old Code.
  • Section 145(4) of the Code.6.
  • Section 146(1) of the Code
  • sub-section (1) of S. 145
  • sub-s. (1) of Section 145
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Hon'ble Mr. Justice K. M. Lahiri
  • Hon'ble Mr. Justice D. Pathak
Acts
  • Section 8 of the Maharashtra Vacant Land (Prohibition of Unauthorised Occupation and Summary Eviction) Act. 1975.
  • Section 145(4) of the old Code.
  • Section 145(4) of the Code.6.
  • Section 146(1) of the Code
  • sub-section (1) of S. 145
  • sub-s. (1) of Section 145
See more information ...
Smart Summary

Judgment Summary — Lahiri, J.

Factual and Procedural Background

This opinion addresses the referred question whether a proceeding under Section 145 of the Code of Criminal Procedure, 1973 (“the Code”) comes to an end once an order of attachment is made under Section 146(1) of the Code on the ground of emergency. The question was referred to the Bench along with a subsidiary question. The petitioner challenged continuation of the Section 145 proceeding after an order of attachment under Section 146(1) in cases of emergency. The learned counsel for the petitioner, Mr. S.N. Medhi, contended that an attachment under Section 146(1) terminates the Section 145 proceeding and relied upon several High Court decisions. The Bench considered statutory language, prior versions under the old Code (Cr. P.C., 1898), earlier High Court decisions, and Supreme Court authorities to determine whether a magistrate becomes functus officio on making such an attachment.

Legal Issues Presented

  1. Whether a proceeding under Section 145 of the Cr. P.C., 1973 comes to an end after an order of attachment is made under Section 146(1) of the Code on the ground of emergency.
  2. Whether a magistrate retains jurisdiction to continue and conclude a Section 145 enquiry (including determining actual possession) after making an attachment under Section 146(1) in cases of emergency; and the related subsidiary question whether a magistrate may find that different parties were in possession of different portions of the subject-matter.

Arguments of the Parties

Petitioner's Arguments

  • Once an attachment is made under Section 146(1) on ground of emergency, the Section 145 proceeding comes to an end; the attachment operates as a bar to continuation of the enquiry.
  • Relied on several High Court decisions (Patna, Delhi, Rajasthan, Assam) which, according to the petitioner's counsel, interpreted Section 146(1) (especially the phrase "until a competent Court has determined the rights of the parties...") as a prohibition on further proceedings under Section 145 once attachment is ordered.
  • Subsidiary contention: where the magistrate found one party in possession of a portion and the other party in possession of the remainder, the petitioner urged implications adverse to continuation (the petition set out facts on mixed possession to support relief sought).

The opinion does not set out detailed arguments advanced on behalf of other parties in the litigation.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mahomed Muslehuddin v. Md. Salahuddin (1976 Cri LJ 1150, Patna) Interpreted Section 146(1) as supporting the view that attachment in emergency terminates the Section 145 proceeding (as relied upon by petitioner). The court noted the decision as one of the authorities relied upon by the petitioner but expressly disagreed with that view for reasons set out in the judgment.
Hakim Singh v. Girwar Singh (1976 Cri LJ 1915, Delhi) Similarly relied upon to show that attachment under Section 146(1) halts further Section 145 enquiry. Noted as an authority relied upon by petitioner; the court rejected that interpretation and held it was not correct.
Mansukh Ram v. State (1977 Cri LJ 563, Rajasthan) Cited by petitioner as supporting termination-on-attachment view. Cited but the court declined to follow that interpretation and distinguished the approach taken in that decision.
S. Kamayao v. A.C. Mamatuithei (1977 Assam LR 58) Earlier decision (by the same judge, Lahiri, J.) interpreted Section 146(1) as terminating the Section 145 proceeding on attachment; relied upon by petitioner. The author of the present opinion expressly recanted this prior decision, describing it as wrong and saying he now corrects that earlier view.
M. Pentiah v. Veeramallappa, AIR 1961 SC 1107 Principle of statutory construction: where literal reading leads to contradiction of purpose or absurdity, the words may be construed to effectuate legislative purpose. The court invoked this authority to support purposive construction of Sections 145 and 146 if literal reading produced conflict; used to justify reading Section 146(1) as relating to duration of attachment rather than a prohibition on continuing enquiry.
Seaford Court Estates Ltd. v. Asher ((1949) 2 All ER 155) Lord Denning’s approach: judges should "iron out the creases" in a statute to make effective the legislature's intention when defects appear. The court quoted and relied on this methodology to support a construction that avoids absurd or unjust outcomes and to justify interpreting Section 146(1) in a manner that preserves continuation of Section 145 proceedings.
Ram Adhin v. Shyama Devi (1977 Cri LJ 453, All) Srivastava J. held that even when attachment is ordered in emergency the magistrate's jurisdiction under Section 145(4) to decide questions of possession does not end. The court cited and agreed with this view as consistent with its own conclusion that continuation is permissible and necessary for harmonious construction.
C.A. D'Souza v. State of Maharashtra (1977 Cri LJ 2032, Bombay) Division Bench held two views were possible and adopted a harmonious construction permitting continuation of enquiry despite attachment. The court treated this decision as supportive and in accord with the conclusion reached here that Sections 145 and 146(1) should be harmoniously read.
Ohandu v. Sitaram ((1978) 1 SCC 210 : AIR 1978 SC 333) Supreme Court pronouncement referenced; court notes the point before the Supreme Court did not directly determine the specific question here. The present court observed that Ohandu did not decide the precise point and therefore cannot be used as decisive authority; at best it may be taken as indicating support for the present view.
Dr. (Mrs.) Shashi Chaudhury v. State of Jammu & Kashmir (1969 UJ (SC) 241) Observation (Hidayatullah, C.J.) that a case is authority for what it decides and not for what can be deduced from it. The court relied on this caution to avoid over-reading other decisions (like Ohandu) and refrained from using them as anchors where they did not decide the point.
Umed v. Raj Singh ((1975) 1 SCC 106 : AIR 1975 SC 43) Bhagawati, J.'s statement that correcting error is the duty of judicial conscience ("To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience"). The author quoted this passage to justify receding from his earlier decision in Kamayao v. A.C. Mamatuithei and to explain the corrected view in the present judgment.

Court's Reasoning and Analysis

The court conducted a textual and purposive analysis of Sections 145 and 146 of the Code and contrasted the new Code with the old Cr. P.C. (1898) to determine legislative intent and the scope of magistrate's powers. The reasoning proceeded in distinct steps:

  1. Historical comparison: Under the old Code two types of attachment were envisaged — emergency attachment before enquiry under Section 145(4), and attachment after enquiry when doubt remained as to possession. The present Code removed the phrase "pending his own decision in the case" and created a separate provision (Section 146) conferring power to attach and appoint a receiver.
  2. Textual parsing of Section 146(1): The court reproduced the text of Section 146(1) (including the proviso) and analyzed qualifying phrases. It identified three circumstances in which attachment may be made: (a) when magistrate considers the case to be one of emergency, (b) when none of the parties was then in such possession as referred to in Section 145, and (c) when the magistrate is unable to satisfy himself as to which party was in such possession.
  3. Meaning of words indicating timing: The words "decides", "unable to satisfy", and "then in such possession as is referred to in S.145" were interpreted as ordinarily referring to a conclusion after an enquiry under Section 145(4). This led to the conclusion that items (2) and (3) presuppose completion of a Section 145 enquiry.
  4. Distinction for emergency attachment: The court held that attachment in an emergency is different in that it can be exercised only after the magistrate has made an order under Section 145(1) — that is, after recording satisfaction about likelihood of breach of peace and issuing directions to parties to appear and file written statements. Thus, emergency attachment is exercisable within the process of Section 145, not as an independent device to terminate proceedings.
  5. Purpose and continuity of enquiry: The court found it anomalous to interpret Section 146(1) as terminating the ongoing Section 145 process once a date for appearance and filing of written statements has been fixed. Section 146 does not, expressly or by implication, bar the magistrate from continuing with the enquiry he initiated under Section 145(1).
  6. Interpretation of the phrase concerning "until a competent Court has determined the rights of the parties": The court held this language relates to the duration of attachment (i.e., how long the attachment may continue), not to a prohibition on the magistrate proceeding with the Section 145 enquiry. The magistrate's power under Section 145(4) is limited to determining actual possession — not deciding merits of title — and that power is not taken away by the quoted phrase in Section 146(1).
  7. Role of proviso: The proviso to Section 146(1), which permits withdrawal of attachment when the magistrate is satisfied there is no longer likelihood of breach of peace, was seen as consistent with allowing the magistrate to proceed and to withdraw attachment if, after enquiry and finding, the risk of breach is removed (for example by a prohibitory order).
  8. Purposive construction: Relying on M. Pentiah and Seaford Court Estates principles, the court held that if literal reading created contradiction or absurdity, the court should interpret the provision in a manner that effectuates legislative purpose. The court believed that a literal construction terminating proceedings on attachment would produce an unfair advantage to the strong and an injustice to the weak.
  9. Consideration of earlier authorities: The court agreed with High Court decisions (Ram Adhin; C.A. D'Souza) that adopted harmonious constructions permitting continuation. It distinguished and disagreed with other High Court decisions (Patna, Delhi, Rajasthan, and the court's own earlier decision in Kamayao) that took the contrary view. The court expressly recanted its earlier ruling in Kamayao, describing it as wrong.
  10. Subsidiary point on divided possession: The court held there is no bar on a magistrate finding that different parts of the disputed land were in the actual physical possession of different parties; the magistrate has the jurisdiction to determine possession on the date of the drawing of the proceeding and may make findings accordingly.

Holding and Implications

Holding: The court held that a magistrate does not become functus officio after a land is attached under Section 146(1) of the Code in the case of an emergency; Section 146 deals with the duration of an order of attachment and does not prohibit the magistrate from continuing and concluding a Section 145 enquiry.

Implications

  • Direct effect on the parties: The magistrate retains jurisdiction to continue with and conclude the Section 145 proceedings notwithstanding an attachment in cases of emergency; the attachment governs how long the magistrate's interim seizure of the subject-matter can continue, but it does not terminate the enquiry.
  • Withdrawal of attachment: If, upon conclusion of the enquiry and by reason of a positive finding and prohibitory order, the magistrate is satisfied that there is no likelihood of breach of peace, he may withdraw the attachment under the proviso to Section 146(1).
  • Partial possession findings: A magistrate may lawfully find that parts of the disputed subject-matter were in actual possession of different parties and decide accordingly; such findings fall within the magistrate's jurisdiction under Section 145.
  • Precedential effect within this opinion: The court expressly disagreed with, and declined to follow, certain earlier High Court decisions that held otherwise, and the author specifically recanted his prior decision in Kamayao v. A.C. Mamatuithei as erroneous. The petition was dismissed.
  • Broader precedent-setting: The opinion explains a harmonious, purposive construction of Sections 145 and 146. If no wider consequence is discussed beyond these points, the direct effect is the magistrate's retained jurisdiction and the dismissal of the petition; the court also corrected its earlier contrary view.

Disposition

The petition is dismissed.

Show full summary ...

    Kshetra Mohan Sarkar v. Paran Chandra Mandal Opposite Party.

    Lahiri, J.:— Whether a proceeding under S. 145 of the Cr. P.C, 1973 (for brevity referred to as “the Code”) comes to an end after an order of attachment is made under S. 146(1) of the Code on the ground of emergency?

    2. This is the moot question posed and referred to this Bench along with a subsidiary question. The later is not of wide importance. Mr. S.N Medhi, the learned Counsel appearing on behalf of the petitioner has contended that once an attachment is made under S. 146(1) of the Code on the ground of emergency a proceeding comes to an end. Counsel relies on the decisions reported in 1976 Cri LJ 1150 (Pat), Mahomed Muslehuddin v. Md. Salahuddin; 1976 Cri LJ 1915 (Delhi), Hakim Singh v. Girwar Singh; 1977 Cri LJ 563 (Raj), Mansukh Ram v. State; and 1977 Assam LR 58, S. Kamayao v. A.C Mamatuithei, and adopts the principles enunciated in these decisions as a part of his argument. The sole factor for arriving at the conclusion was plain and simple reading of S. 146(1) of “the Code” along with the proviso. The learned Judges put special emphasis on the collocation of the words “until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof;” as contained in S. 146(1) of “the Code read with the proviso empowering such Magistrate to withdraw the attachment on his satisfaction as to the non-existence of likelihood of a breach of peace with regard to the subject of the dispute.

    3. Under the Cr. P.C Code, 1898 (since repealed) (for brevity referred as “the old Code”) two classes of attach tnent were envisaged:— (1) attachment in case of emergency before an enquiry under S. 145(4), and (2) attachment after the said enquiry in case of doubt as to which party was in possession of the subject-matter of dispute, that is, after the completion of an enquiry under Section 145(4) of “the old Code”. It will be seen that under S. 145 of “the old Code” the first kind of attachment in case of emergency with the qualifying words “pending his own decision in the case” have been obliterated by “the Code”. Therefore, under “the old Code” a Magistrate ‘had power to attach the land in case of emergency either before the commencement of the enquiry under S. 145(4) or after the conclusion thereof, subject to the conditions set forth above.

    4. Under “the Code” it appears to us that a separate provision has been made empowering the Magistrate to attach the subject-matter of the dispute and to appoint receiver. We set out the provision contained in S. 146(1) of “the Code” along with the proviso:—

    146. Power to attach subject of dispute and to appoint receiver.— (1) If the Magistrate at any time after making the order under sub-section (1) of S. 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 S. 145. or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, 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 a breach of the peace with regard to the subject of dispute.”

    (underscored by us)

    5. Attachment can be made under S. 146 only in cases of (1) emergency, (2) if the Magistrate decides that none of the parties was then in such possession aa is referred to in S. 145 or (3) he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute. It becomes crystal clear that the conditions precedent for attachment as stated tinder Items 2 and 3 above must be after determination of enquiry under S. 145(4) of “the Code”. The words and expressions underlined, namely, “decides”, “unable to satisfy”, “then in such possession as is referred to in S. 145” are conclusive enough to show that they can be made only after completion of a proceeding under Section 145(4) of “the Code”.

    6. It will be seen that the conditions precedent of Items 2 and 3 are (1) a positive decision of the Magistrate that none of the parties was in actual physical possession of the subject of dispute as referred to in S. 145, and (2) his inability to satisfy himself as to which of the parties was in actual physical possession of the land on the date of drawal of the proceeding. However, these are not the condition-precedent of attachment in case of emergency. The conditions precedent for attachment are, when the Magistrate (1) makes an order under S. 145(1) of “the Code”, and (2) considers the case to be one of pressing necessity, crisis or emergency. As such, it can be reasonably concluded that a Magistrate derives his power to attach a land in ease of emergency only after he makes an order under S. 145(1).

    7. Therefore, let us turn to S. 145(1) of “the Code”. An order under S. 145(1) includes the following:— (r) Satisfaction of the Magistrate as to the likelihood of the breach of peace and recording the grounds of ihis satisfaction in the order; (2) requiring the parties concerned in such disputes to attend (a) his Court, (b) on a specified date and time, and (cj to put in written statements as respects the fact of actual possession of the subject of disputes. Therefore, we visualise the position under wfoich an attachment is made in case of emergency. It can be made only after a written order of a Magistrate to the parties 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 and then alone a Magistrate is empowered tc attach the disputed land provided he considers it to be a case of emergency, Therefore, we find ourselves unable to reconcile the position that after fixation of the date of appearance of the parties and calling upon them to lodge the respective claims of the parties the legislature intended to stop the proceeding. Section 146 does not contemplate even by implication a total withdrawal or prohibition or impose a bar or ban on the Magistrate to proceed on with an enquiry Initiated by him commandeering the parties to take steps in aid. Least than we can say is that the said position appears to us to be not only anomalous but irreconcilable.

    8. In our opinion, had it been the intention of the legislature to withdraw the power of continuance of a proceeding the legislature would have put the expressions “at any time after being satisfied that a dispute likely to cause a breach of peace exists and making of order in writing stating the ground of being so satisfied under sub-s. (1) of Section 145” in place of the expressions “at any time after making the order under sub-s. (1) of S. 145.” But in view of the use of expressions contained in sub-”. (1) of S. 145 we are left with no alternative but to hold that an attachment of a land, in case of emergency, can be made only after fulfilling all the condtions precedent of sub-s. (1) of S. 145 of “the Code”. This is indicative of the fact that by the use of a particular set of expression in S. 146(1) of “the Code” the legislature has pointedly favoured continuance of the proceeding and not withdrawal of the proceeding. They did not use the expressions referred by us to nip in the bud a regular initiation of a proceeding under S. 145(1) of “the Code”. The mandate of the legislature in not prohibiting the Magistrate to call upon the parties on a subsequent specified date and time and also to out in their claims reinforces our conclusion that the Magistrate is bound to continue with the proceeding drawn up by him under Section 145(1) notwithstanding an attachment under S. 146(1) of “the Code” in case of emergency.

    9. We are not oblivious of the fact that in certain cases attachment may be called for even during the continuance of a proceeding under S. 145(4). As an abundant caution the expressions “at any time after … … … …Section 145” have been used in S. 146(1) of “the Code”. In that event the legislature would have, in our opinion, used the expressions set out in S. 146(1) in the alternative.

    10. We conclude that the use of the expressions in S. 146(1) is the indicative of the commencement of an order of attachment and nothing more. The use of expressions in the opening part of S. 146, at any rate, do not take away the jurisdiction of a Magistrate to continue with the proceeding is clear and apparent. On the other hand they merely indicate the date of commencement of an order of attachment.

    11. Therefore, when a Court is allowed to proceed on with a proceeding it is natural and reasonable to conclude that the law gives it jurisdiction to conclude the proceeding unless of course there are prohibition or embargo expressly put by the leg'slature not to proceed on with it. Scanning S. 146 coupled with S. 145 of “the Code”, we do not find any embargo or prohibition either expressly prescribed or can be impliedly drawn that a proceeding comes to an end no sooner an attachment is made in case of emergency. In our opinion, the proceeding in such cases must continue as there is no embargo clearly expressed or reasonably drawn by necessary intendment from any of the provisions referred to above.

    12. It has been argued and found favour in some of the High Courts in India that the expression “he may attach the subject-matter until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof;” is a clear prohibition. In our opinion, it is not. It goes without saying that the question of prohibition to continue with the proceeding does not arise in case of a decision by the Court that none of the parties was then in such possession as is referred to in S. 145 or if the Court is unable to satisfy itself as to which of them was in such possession. After conclusion of the enquiry envisaged under S. 145(4) an order of attachment may be made by the Court. The question of second enquiry is never called for. It has been argued that the expression referred to above cries a halt to the proceeding under S. 145 of “the Code”. It is the first impression that one gets while reading the section. If one reads between the lines it will appear clear that the expression is not a prohibition to continue with the proceeding in case of emergency but it speaks about the length and duration of the attachment. It has nothing to do with the exercise of power of the Court to proceed on with an enquiry under S. 145. It is too late in the day to enunciate anew the limit of the power of the Court to determine the rights of the parties in a proceeding under S. 145. Suffice it to say that a Magistrate cannot determine “the merits or the claims of the parties to a right to possess the subject of dispute” and ‘his only jurisdiction is to determine “the effect of actual possession of the subject of dispute”. Therefore, the power of the Court is limited to the determination of “actual possession” without reference to the merits or claims of any of the parties to a right to possess the subject-matter of dispute. This being the limit of the power, the question is as to whether any such power of determination vested in the Court under S. 145 has been taken away by the said expression. The power to determine the question of an actual possession on the date of drawal of the proceeding, which is the jurisdiction of the Court ‘has not been taken away by the expression. A power which was never there in the Court to determine under S. 145(1) is referred to in the expression. As such, it cannot be said that by the said expression the power of the Court under S. 145(4) has been taken away. In our opinion, the expression referred to above speaks only about the duration of the attachment and nothing more. This is the most reasonable way of looking at S. 146(1) Tead with the proviso.

    13. It was urged that in the event of attachment in the case of emergency if the Magistrate continues to proceed on with the action under S. 145 and decides that one of the parties in actual physical possession of the land ihe would have no jurisdiction to withdraw the attachment. In our opinion, it is a wrong approach. If a Magistrate decides in favour of a party he has the power to prohibit the other party not to disturb the possession of the other. This order of injunction takes away the likelihood of any breach of peace with regard to the subject-matter of dispute in view of a positive finding and the order of prohibition issued by a competent Court. For this contingency a provision has been made by the legislature in proviso to sub-s. (1) of S. 146 of “the Code”. In the event of a decision and a prohibitory order no breach of peace can exist and the Magistrate would be competent to withdraw the order of attachment.

    14. Therefore, in short, we are of the ‘opinion that S. 146 deals with duration of an order of attachment and deos not prohibit any Court directly or indirectly to proceed on with a proceeding under S. 145 of “the Code” in case of emergency. In respect of the other contingencies arising after the decision the question of second enauiry cannot arise at all.

    15. We are of the view that there is no ambiguity in S. 146 and the meaning of the provision appears to us to be clear and explicit. But however, if the words are really ambiguous, that is to say, that they can reasonably bear more than one meaning or if S. 146, if read literally, is Incompatible with S. 145 of “the Code”, the Court would be justified in construing the words in a manner which will make the section purposeful. This was the view expressed in M. Pentiah v. Veeramallappa, AIR 1961 SC 1107.

    16. The Supreme Court observed as follows (at p. 1115)—

    “Where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience of absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence ………”

    17. This shows clearly that a construction leading to a manifest contradiction of an apparent purpose of the enactment or to some inconvenience or absurdity, hardship or injustice presumably not intended by the legislature, a construction should be put which modifies the meaning of the words and even the structure of the sentence.

    18. While dealing with the auestion as to the interpretation of a statute Lord Denning in Seaford Court Estates Ltd. v. Asher. (1949) 2 All ER 155 (164) has observed that when a defect appears in a statute. Judges cannot simply fold their hands and blame the draftsman. They should supplement the written word so as to animate or make effective the intention of the legislature. They should answer the question how the legislature, who had devised or made the law would have straightened it. We are tempted to quote an observation of Lord Denning in the above case, which is an example of the methodology of judicial process—

    “a Judge must not alter the material of which the Act is woven, but he can and should iron out the creases,”

    19. If we give any other interpretation to S. 146 it would be a happy day for the strong against the weak. Gay and happy, the strong would prevail over the weak by attempting to grab weaklings' properties, create an emergent situation, obtain an order of attachment and the poor or weak shall be left with no other alternative but to eo to the Civil Court and accept a decision or the fruit of litigation to be ‘handed down to his successor. This is iust an instance. Any other meaning would create an ambiguous position and we do not see any reason for stopping a proceeding under S. 145 up to its conclusion. Therefore, although we do not find ahy ambiguity in S. 146. we are constrained to hold that if there is any, we instead of altering the material of the Act which is woven we just iron out the ereases of the provision and assert the view that the legislature would have straightened out the ambiguity if questioned of their real intention in the manner set out by us.

    20. Srivastava J., in Ram Adhin v. Shyama Devi, 1977 Cri LJ 453 (All), having considered the object of a proceeding under S. 145, held that two views were possible and considering the underlying object of Chap. X of the Act held that even in the case of attachment, in case of emergency the jurisdiction of a Magistrate to decide question of possession as contemplated under S. 145(4) did not come to an end. A similar view ‘has been expressed by a Division Bench of the Bombay High Court in C.A D'Souza v. State of Maharashtra, 1977 Cri LJ 2032. The learned Judges held that two views were possible and accordingly a harmonious construction of Ss. 145 and 146(1) was necessary. We entirely agree with the conclusion arrived at. But however, according ta us reading between the lines, S. 146(1) read with S. 145 depict a clear picture that there is no ambiguity and a Magistrate does not become functus officio to proceed on with an action under S. 145 after an order of attachment under S. 146(1).

    21. We respectfully differ from the opinions expressed by the Delhi, Patna, Rajasthan and this Court referred to by the, learned Counsel for the petitioner, for the reasons set forth above.

    22. In the result, we hold that a Magistrate does not become functus officio after a land is attached under Section 146(1) of “the Code” in the case of an emergency.

    23. The subsidiary point urged appears to be short and concise. The Counsel for the petitioner submits that the Magistrate found that the first party was in possession of a portion of the subject-matter of the dispute and the second party in the rest. In our opinion, there is no bar for the Magistrate to hold that a part of the subject-matter of the dispute was in actual physical possession of one party and the other was in such possession of the other party. On materials available at his disposal, the learned Magistrate has arrived at the conclusions. When the power of determination as to who was in possession of the subject matter of dispute on the date of drawal of the proceeding has been conferred on a Magistrate without any limitation, he has the power to determine the entire question as to the possession of the parties to the proceeding. It happens more, than often that the narty in posssession of a part of the land claims possession over the entire disputed land and the other party being in possession of a part of the subject matter of dispute lodges his claim over the entire subject matter of dispute. Under such circumstances, a Magistrate, in our opinion, does not lose jurisdiction to determine the rights of the parties as to the actual possession of the subiect matter of disputes. We do not find any force in the contention and as such, we reject the same. We are not oblivious of the pronouncement of the Supreme Court in Ohandu v. Sitaram, (1978) 1 SCC 210 : AIR 1978 SC 333 : (1978 Cri LJ 356). In our opinion the question did not come up for consideration nor did Their Lordships determine the point. A pending proceeding under Section 145 does not abate in view of a bar of jurisdiction of Courts imposed under Section 8 of the Maharashtra Vacant Land (Prohibition of Unauthorised Occupation and Summary Eviction) Act. 1975. At best we can go to this extent that from the pronouncement it may be inferred or comprehended that the opinions expressed by us is on the right track. In view of the stem caution of Hidayatullah, C.J, in Dr. (Mrs.) Shashi Chaudhury v. State of Jammu & Kashmir, 1969 UJ (SC) 241 at p. 245 reading. “The case is an authority for what it decides and not for what can be deduced from it” (Emphasis supplied), we ‘have refrained from using the decision as the sheet anchor in deciding the question.

    24. In fine. I have no hesitation in saving that my decision in Kamavao v. A.C Mamctuithei. 1977 Assam LR 58, was a wrong decision. I did not look at the provision from all perspectives. I own the entire blame but I have the satisfaction that by constant exercise I have seen a new light in the provision to declare my own decision to be wronfi, I feel relaxed and I cannot better express my feeling than to recall an observation of Bhagawati, J. in Umed v. Raj Singh, (1975) 1 SCC 106 : AIR 1975 SC 43 at p. 58:—

    “To perpetuate an error is no heroism. To rectify it is the comdulsion of iudicial conscience. In this we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter. (1847) 3 AMY 18:

    ‘A Judae ought to be wise enough to know that he is fallible, and therefore ever ready to learn: great and ‘honest enough to discard all mere nride of opinion, and follow truth wherever it may lead: and courageous enough to acknowledge his errors’………”

    25. In the result, the Detition stands dismissed.

    26. Petition dismissed.

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    Comments

    Kshetra Mohan Sarkar v. Paran Chandra Mandal Opposite Party.
    (Apr 20, 1978)