Sagar Bhattacharyya v. Sm. Chayarani Sarkar

1. This Rule is directed against an order u/s. 146 Cr. P.C passed by the learned Sub-divisional Magistrate of Bankura Sadar (North) attaching the disputed land after drawing up a proceeding u/s. 145 Cr. P.C By that order the learned Sub-divisional Magistrate directed the parties to appear before him on the next date and file a written statement in support of their respective claims regarding possession. Against this order of the learned Sub-divisional Magistrate, the second party petitioner went up before the Sessions Judge, Bankura in revision being Criminal Motion No. 30 of 1977. The point that was taken before the learned Sessions Judge was that the learned Magistrate had no jurisdiction to enquire about the possession of the parties to the subject matter of the dispute after the same had been attached by him u/s. 146 of the Code of Criminal Procedure and accordingly his direction for filling written statement is illegal and without jurisdiction. The learned Sessions Judge considered the arguments of both the parties and came to a finding that on a construction of Ss. 145 and 146 of the Code of Criminal Procedure, the learned Magistrate had jurisdiction to enquire about the possession of the parties after emergency attachment, pending inquiry and accordingly rejected the application of the petitioner. Now, the petitioner has come up invoking the inherent power of this Court to set aside that order. A preliminary objection has been taken in this case by the learned Advocate appearing for the opposite party that since the petitioner had gone up in revision before the Sessions Judge he cannot invoke the powers of this Court under S. 482 of the Code of Criminal Procedure.

2. Mr. Kishore Mukherjee, learned Advocate appearing for the petitioner has submitted that since there is no other alternative remedy available to the petitioner against the alleged illegal order passed by the learned Session Judge, this Court can interfere under its inherent powers. In this connection, Mr. Kishore Mukherjee has referred me to several cases of different High Courts. I need not refer to them inasmuch as the matter is settled by the decisions of the Supreme Court. Of them I may refer to two viz. AIR 1959 SC 542 and AIR 1960 SC 866. In these two decisions, it has been held that S. 482 of the Code of Criminal Procedure cannot be invoked to override an express provision of law or when there is any other remedy available to the party. The petitioner has already availed of his remedy under the revisional jurisdiction of the Sessions Judge as provided in S. 397 of the Code of Criminal Procedure and, therefore, unless he can show that the judgment of the Sessions Judge is so perverse and without jurisdiction, I am afraid I cannot intervene in the matter. So to come to the question as to whether the order passed by the Sessions Judge in revision is illegal and without jurisdiction as submitted by Mr. Kishore Mukherjee, I hold that is so as indicated below. I have already stated that the learned Magistrate after perusing the documents filed by the parties, on being satisfied that there was apprehension of breach of peace as both the parties were trying to take forcible possession of the disputed land, he attached the property u/s. 146 Cr. P.C after drawing up proceedings u/s. 145 Cr. P.C asking the parties to file written statement in support of the respective claims of the parties regarding possession. Mr. Kishore Mukherjee submits that once the learned Magistrate has exercised his powers under S. 146 Cr. P.C to attach the property in dispute he has no other functions u/s. 145 Cr. P.C except to await the decision of a competent court regarding possession. Till then the property in dispute will remain attached so far as Ss. 145 and 146 of the Code of Criminal Procedure are concerned, these are not separate or independent sections. They are in the same Chapter X of the Code under the heading Maintenance of Public Order and Tranquillity. Sections 144, 145 and 146 come under the heading “urgent cases of nuisance or apprehended danger”. This Chapter relates to preventive measures provided in the Code relating to public tranquillity. Section 146 has been amended to a great extent by the Amendment Act, 1973. Previously, the learned Magistrate could only invoke his powers u/s. 146 when he decides that none of the parties was then in possession or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, then alone he can attach the subject of dispute. Under the previous S. 146 (old Code) in either of the cases the learned Magistrate had to refer the matter to a competent Civil Court and await the decision of that Court in order to take steps regarding the attachment made in respect of the disputed land. But now under the present S. 146 of the Cr. P.C the provisions regarding reference to a Civil Court has been omitted. A clause had been added u/s. 146 in addition to two previous ones u/s. 146(1) and that relates to cases of emergency. If the learned Magistrate considers the case to be one of emergency he can attach the subject of dispute until a competent Court has determined the rights of the parties thereto. In the previous, S. 145 sub-clause 4, (old Code) the third proviso provides “if a learned Magistrate considers the case one of emergency he may at any time attach the subject of dispute pending his decision under that section”. This proviso has been omitted in S. 145 of the present Code. Mr. Kishore Mukherjee submits that since the power of inquiry has been omitted in S. 145 of the present Code the learned Magistrate cannot enquire into the matter, hence he cannot direct the parties to file written statements. In this connection, Mr. Kishore Mukherjee has referred me to several reported decisions viz. in 1976 Cr. L.J All 209, 1976 Cr. L.J Patna 1152 and 1916 Cr. L.J Orissa 214. All these decisions support the contention of Mr. Mukherjee. It has been argued on behalf of the opp. party that the competent court in S. 146 may mean any Court including the Court of the learned Megistrate himself. If that be the object of that section, I do not understand why the third proviso as it was before the amendment has been omitted in the present S. 145 Cr. P.C It has been further argued by the learned Advocate for the opp. party that the object of S. 145 Cr. P.C would be frustrated if such construction is put to S. 146 Cr. P.C I think that since the provision of S. 145 Cr. P.C is to prevent breach of peace and particularly in a case of emergency when the learned Magistrate attaches the property and the property becomes custodia legis, i.e within the custody of the Court, the apprehension of breach of peace is averted and in a proper case the Magistrate may even appoint a Receiver to manage the property under attachment until a competent court has decided the question of possession in respect of the disputed property and appointed a Receiver. I agree with the submissions made by Mr. Kishore Mukherjee and I hold that the order passed by the learned Magistrate is illegal and without jurisdiction.

3. In view of what I have stated above, I think the directions given to the parties to put in written statement of their respective claims is without jurisdisction and manifestly illegal. Though the petitioner had gone up to the Sessions Judge in revision, I think for the interest of justice and to prevent the abuse of process of court the judgment of the learned Sessions Judge is set aside and the order for filing written statement and fixing a date for the same by the learned Magistrate is quashed.

The Rule is accordingly made absolute.

Rule made absolute.