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Case Number
Judges
  • P.N Bakshi, J.
Acts
  • provisions of Section 145(4), Cr. P.C
  • Section 145(4), Cr. P.C
  • Section 145(6), Cr. P.C
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • P.N Bakshi, J.
Acts
  • provisions of Section 145(4), Cr. P.C
  • Section 145(4), Cr. P.C
  • Section 145(6), Cr. P.C
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

On the basis of a police report dated 20 October 1974, the Sub-Divisional Magistrate passed a preliminary order under Section 145(1), Cr. P.C. on 21 October 1974 and, considering the matter an emergency, ordered attachment of the disputed property under Section 146(1), Cr. P.C. The parties were summoned to file written statements. The property was attached on 22 October 1974.

Bisso Mal filed applications (29 October 1974 and subsequently) asserting the police report was incorrect, that there was no apprehension of breach of peace, and praying for release of the property from attachment. He also filed a written statement on 19 November 1974 claiming ownership and possession and asserting there was no apprehension of breach of peace.

The police submitted a report on 3 December 1974 that apprehension of breach of peace continued. On the same day Govind Prasad filed a written statement asserting his ownership and possession and alleging immediate danger to peace due to Bisso Mal's interference. The Magistrate on 3 December 1974 agreed with the police report, rejected Bisso Mal's application to drop proceedings under Section 145 and continued the inquiry. Bisso Mal's statement was recorded but remained unfinished.

On 19 April 1976 the Magistrate, being of the view that because the land was attached he should not proceed further with the inquiry, directed the parties to get their claims for possession decided by a competent civil court. Pursuant to that order, Bisso Mal filed a civil suit for title and possession; that civil suit was pending (sub judice).

On 6 October 1977 Bisso Mal again applied to drop the 145 proceeding on the ground there was no apprehension of breach of peace. On 27 January 1978 the police reported there was no apprehension. Govind Prasad opposed that report by affidavit (31 March 1978), asserting the police report was incorrect and that apprehension continued. The Magistrate rejected the police report and, on 31 March 1978, refused Bisso Mal's application to drop the proceeding, directing that the property remain under attachment until the parties' rights were decided by the Civil Court.

Bisso Mal obtained revision before the Sessions Judge, Agra, which was allowed on 3 August 1978: the Sessions Judge set aside the Magistrate's order dated 31 March 1978, directed that the proceeding under Section 145 Cr.P.C. be dropped as redundant and ordered withdrawal of the attachment. Aggrieved, Govind Prasad filed the present revision. The present opinion reviews the record, analyses the law (particularly Sections 145 and 146 Cr.P.C.), considers authorities relied upon by the parties, and decides the revision.

Legal Issues Presented

  1. What is the proper interpretation and application of Section 146(1), Cr. P.C.—in particular, in which contingencies may a Magistrate order attachment of immovable property and for how long must such attachment continue?
  2. Was the Sessions Judge's order (3 August 1978) directing the Magistrate to drop the proceedings under Section 145 Cr. P.C. and to withdraw the attachment legally valid?
  3. Was the Magistrate's order dated 19 April 1976, directing the parties to decide their rights in civil court and continuing attachment until the civil court decides, a valid exercise of power under Sections 145 and 146 Cr. P.C.?

Arguments of the Parties

Bisso Mal

  • Asserted that the police report(s) contained incorrect allegations and that there was absolutely no apprehension of breach of peace in respect of the disputed plot.
  • Prayed that the property be released from attachment and that the criminal proceeding under Section 145 be dropped.
  • On one occasion argued that the Magistrate's order dated 19 April 1976 had become final because no revision or writ petition was filed to quash it.
  • Relied (through counsel referred in the record) on the division bench case Sohan Lal Burman v. State of U.P. to contend that in the contingencies specified by Section 146 the Magistrate must stay proceedings and the controversy should be resolved by the civil court.

Govind Prasad (Applicant in the present revision)

  • Asserted ownership and possession of the disputed plot and contended there existed an immediate danger to the peace because of alleged interference by Bisso Mal.
  • Opposed accepting the police report of 27 January 1978 that there was no apprehension of breach of peace; filed an affidavit asserting the police report was incorrect and apprehension continued to exist.
  • Contended before the revisional court that the Magistrate had correctly refused to drop the proceedings and to withdraw the attachment, and that the Sessions Judge's direction to drop the entire proceeding under Section 145 Cr.P.C. was illegal.
  • Argued that the Magistrate's order dated 19 April 1976 (directing parties to civil court) had become final (this contention is recorded in the opinion though it was rejected by the revisional court).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Smt. Prem Lata v. Ram Lubhaya, 1978 All Cri C 336 : 1978 Cr. L.J 1822 Cited as supporting the court's enunciation of the law regarding attachment under Section 146 and distinctions between contingencies when attachment may be ordered. The court stated the above enunciation of the law is supported by its earlier decision in this matter, referring to that authority as consistent with the present analysis.
Sohan Lal Burman v. State of U.P., 1977 All Cri C 169 : 1977 Cri LJ 1322 Relied upon (by counsel) for the proposition that in any of the three contingencies mentioned in Section 146 the proceeding under Section 145 comes to an end and the Magistrate must stay hands with resolution of controversy left to the civil court. The court reviewed this division bench authority as represented by counsel and contrasted it with the subsequent Supreme Court authority; it did not treat Sohan Lal Burman as dispositive in light of the Supreme Court decision.
Chandu Naik v. Sita Ram, (1978) 1 SCC 210 : AIR 1978 SC 333 Set out guidance for Magistrates: complete S.145 proceedings if possible; if able to declare possession, withdraw attachment; if unable to decide or if none in possession, attachment may be kept until civil court determines rights (with recourse under S.146(2) if necessary). The revisional court treated this Supreme Court decision as authoritative and binding on subordinate courts, adopted its guidance as the correct interpretation of Sections 145 and 146, and applied it to modify and quash impugned orders accordingly.

Court's Reasoning and Analysis

The court conducted a textual and contextual analysis of Sections 145 and 146, Cr. P.C., and applied the principles to the record facts.

Key legal analysis points recorded in the opinion:

  • Section 145(1) authorises a Magistrate to pass a preliminary order when satisfied of the existence of an apprehension of breach of peace with regard to immovable property. The Magistrate then conducts inquiry under Section 145(4) and may pass a final order under Section 145(6) declaring which party was in possession on the date of the preliminary order.
  • Section 146 empowers the Magistrate to attach disputed property, and such attachment may be ordered in three distinct contingencies: (a) emergency attachment when the Magistrate considers the case to be one of emergency (this can be ordered at any stage after the preliminary order and prior to the final decision); (b) when, after considering the evidence, the Magistrate concludes that none of the parties is in possession; and (c) when, after considering the evidence, the Magistrate is unable to decide which party is in possession.
  • The court distinguished the first contingency (emergency attachment ordered before the Magistrate has considered rights under Section 145(4)) from the second and third contingencies (attachment ordered as a last act after evidence has been considered under Section 145(4)).
  • In the first contingency (emergency attachment), attachment "enures only for such period as the evidence has been recorded and a final decision has been given by the Magistrate under Sec. 145", and upon declaration of possession the Magistrate must withdraw the attachment under the proviso to Section 146(1) because the apprehension of breach of peace ceases to exist.
  • In the second and third contingencies, the attachment is ordered after the inquiry under Section 145(4) is complete and the Magistrate is either unable to declare possession for either party or concludes none was in possession; in that situation the attachment may be kept until a competent civil court determines the rights of the parties.
  • The court relied on and quoted the guidance in Chandu Naik v. Sita Ram (Supreme Court), treating it as authoritative and binding on subordinate courts; the Supreme Court guidance aligns with the court's analysis and prescribes the Magistrate's course of action in both scenarios (declare possession and withdraw attachment, or retain attachment until civil determination if unable to decide).
  • Applying the legal framework to the record facts, the revisional court found: (a) the Magistrate, before 31 March 1978, had considered the evidence, the police report(s), the affidavit of Govind Prasad and the pendency of the civil suit and had formed the subjective satisfaction that apprehension of breach of peace continued to exist—thus the Magistrate's decision to continue the proceeding on 31 March 1978 was based on consideration of multiple factors and was lawful; (b) the Sessions Judge erred in setting aside that order insofar as the Sessions Judge treated the Magistrate's continuation order as based solely on a police report or treated earlier acceptance of the police report as compelling acceptance later; (c) the Sessions Judge's direction to drop the Section 145 proceeding was therefore illegal.
  • With respect to the Magistrate's order dated 19 April 1976 that directed the parties to have their rights decided by a civil court and ordered attachment until the civil court decided, the revisional court held that was an error in circumstances where the attachment had been an emergency order and the inquiry under Section 145(4) had not been completed (Bisso Mal's statement had been partly recorded and remained to be completed). Therefore the Magistrate should not have ordered attachment to continue until the civil court decision; instead, the emergency attachment should continue only until the inquiry under Section 145(4) is completed and the Magistrate gives his decision under Section 145(6).
  • The revisional court rejected the contention that the Magistrate's 19 April 1976 order was final merely because no revision or writ was filed against it, holding that the revisional court has power to correct illegality or irregularity in proceedings even when no party has filed a revision in the earlier stage.
  • The correct procedure, as the court directed, is for the Magistrate to keep the property under attachment during completion of the inquiry under Section 145(4) and thereafter give his decision under Section 145(6). If after completing the inquiry the Magistrate is unable to decide which party was in possession or considers none was in possession, he may then pass an order under Section 146 attaching the property until the civil court determines the rights of the parties.

Holding and Implications

Holding:

The revision application is allowed.

The court's operative directions and effects (as stated in the opinion):

  • The impugned order of the Sessions Judge dated 3 August 1978 is quashed.
  • The Magistrate's order dated 19 April 1976 is modified insofar as it related to continuing attachment "till the rights of the parties are decided by the civil court": the attachment shall continue only during the pendency of the inquiry under Section 145(4), Cr. P.C., and the Magistrate is directed to proceed to complete the inquiry and give a decision under Section 145(6), Cr. P.C.
  • The Magistrate must follow the course prescribed by law (as explained and in the light of Chandu Naik), i.e., complete the Section 145 inquiry and then either declare possession and withdraw attachment or, if unable to decide or if none was in possession, may pass a further order under Section 146 to keep the property attached until a civil court determines rights.

Implications:

  • The decision clarifies the proper application of Sections 145 and 146 Cr. P.C. consistent with the Supreme Court's guidance in Chandu Naik v. Sita Ram: emergency attachment ordered prior to final decision should endure only until the inquiry is completed and a decision under S.145(6) is given; only where the inquiry has been completed and the Magistrate cannot decide possession (or none was in possession) may attachment be continued pending civil determination.
  • Direct effect on the parties: the Sessions Judge's order dropping the Section 145 proceedings and directing withdrawal of attachment is set aside; the Magistrate must complete the Section 145 inquiry and limit the emergency attachment to the duration of that inquiry, after which the Magistrate must give his decision under Section 145(6) (with further attachment under Section 146 only if the conditions for such attachment, post-inquiry, arise).
  • The court applied and reiterated existing law rather than purporting to lay down a novel precedent; it expressly relied upon the Supreme Court's decision in Chandu Naik as authoritative guidance and treated that decision as binding on subordinate courts.

Order accordingly.

Show full summary ...

    Govind Prasad v. Bisso Mal

    1. On the basis of the report of the police of Police Station Achnera dated 20th Oct., 1974 the Sub-Divisional Magistrate passed a preliminary order u/s. 145(1), Cr. P.C on 21st Oct., 74. Considering the case one of emergency, he also directed attachment of the property under S. 146(1), Cr. P.C The parties were summoned to file their written statements. On 22nd Oct., 74 the property was attached. Thereafter on 29th Oct., 74 Bisso Mal filed an application alleging that the report of the police contained incorrect allegations and there is absolutely no apprehension of breach of peace with respect to the disputed plot. It was prayed that the property be released from attachment. The Magistrate called for police report on this application. On 19th Nov., 1974, Bisso Mal filed a written statement in which he asserted that he was the owner in possession of the disputed plot and that he had constructed a building thereon and that there was no apprehension of breach of peace. On 3rd Dec., 74 the police report was submitted to the effect that the apprehension of breach of peace continued to exist as before. On the same day viz. 3rd Dec., 74 Govind Prasad filed his written statement in which he asserted his ownership and possession of the plot in dispute, and asserted that there existed an immediate danger of peace since Bisso Mal was interfering with his possession. The learned Magistrate again passed an order on 3rd Dec., 74 agreeing with the report of the police as to the existence of an apprehension of breach of peace. He rejected the application of Bisso Mal for dropping the proceeding under S. 145, Cr. P.C and ordered that the proceeding shall continue. The court proceeded to record the statement of Bisso Mal in respect of his claim for possession over the land in dispute. The statement of Bisso Mal was unfinished and was to continue. Subsequently on 19th April, 76 the Magistrate being of the opinion that in view of the attachment of the land in dispute, he should not proceed further with the inquiry, he passed an order on the same date directing the parties to get their claim for possession decided by a competent court. It appears that in pursuance of this order, a civil suit for title and possession as filed by Bisso Mal and the matter is still sub judice.

    2. It appears from the record that on 6th Oct. 77 Bisso Mal again filed an application alleging that there was no apprehension of breach of peace and the proceedings be dropped. On 27th January 78 the police submitted a report that now there did not exist any apprehension of breach of the peace with respect to the land in dispute. In opposition Govind Prasad filed an application and affidavit on 31-3-78 that the report of the police was incorrect and that the apprehension of breach of peace continued to exist. The Magistrate did not accept the police report and considering all the circumstances passed an order on 31st March 78 rejecting the application of Bisso Mal for dropping the proceeding and directed that the property shall continue to remain under attachment till the rights of the parties had been decided by the Civil Court. Aggrieved thereby a revision was filed by Bisso Mal before the Sessions Judge Agra. This revision has been allowed on 3rd Aug, 78. The order of the Magistrate dated 31st March, 78 refusing to drop the proceeding and withdraw the attachment, have been set aside. The Sessions Judge has directed that the proceeding under S. 145, Cr. P.C be dropped as redundant. Hence this revision by Govind Prasad. I have heard the learned counsel for the parties at considerable length and have also carefully scrutinized the record. Counsel for the applicant has contended that the impugned order passed by the Sessions Judge is illegal. The order passed by the Magistrate on 19th April, 1976 by which he directed the parties to get their rights decided by the civil court had become final, that since the apprehension of breach of peace continued to exist the Magistrate was correct in refusing to drop the proceeding and withdrawing the attachment that the direction of the Sessions Judge for dropping the entire proceeding under S. 145, Cr. P.C was illegal.

    3. Much controversy has been also raised between the parties on the interpretation of S. 146, Cr. P.C Before deciding the other submissions, raised in the case I consider it necessary to analyse the legal position. Sec. 145(1) authorises the Magistrate to pass a preliminary order, if he is satisfied as to the existence of an apprehension of breach of peace with regard to immovable property. After passing of such an order, he proceeds to conduct the inquiry in accordance with the provisions of Section 145(4), Cr. P.C and to pass a final order under S. 145(6), Cr. P.C in favour of one of the parties whom he holds to be in possession on the date of the preliminary order. Under S. 146, Cr. P.C however he has been empowered to attach the property in dispute. This order of attachment can be passed in three contingencies.

    1. When he considers the case one of emergency, after the passing of the preliminary order under S. 145, Cr. P.C

    2. When he comes to the conclusion on a consideration of the entire evidence that none of the parties is in possession of the property in dispute and

    3. When on a consideration of the evidence, he is unable to decide as to which party is in possession.

    4. In either of these three cases, he is entitled to attach the property in dispute. It is to be noticed that in the first contingency the order of emergency attachment is passed at any stage after the preliminary order, prior to the final decision by the Magistrate regarding the question of possession, on the basis of evidence led by the parties under Section 145(6), Cr. P.C In the second and third cases, however, the order of attachment is passed after considering of the evidence which the parties have led in the inquiry under Section 145(4), Cr. P.C It is thus clear that in the first case, there is no consideration by the Magistrate of the rights of the parties to possess the land, but in the second and third cases, there is a complete consideration by the court of the right to possession by the contestants.

    5. Obviously, therefore, in the first case, the attachment enures only for such period as the evidence has been recorded and a final decision has been given by the Magistrate under Sec, 145, Cr. P.C holding one of the two contesting parties to be in possession of the disputed land. In that event, he declares the possession of such party and forbids the other contestants from interfering with his possession except in due course of law. After coming to this conclusion, the emergency attachment which has been effected after the passing of the preliminary order, has to be withdrawn under the proviso of the S. 146(1), Cr. P.C Because the apprehension of breach of peace no longer exists.

    6. In the second and third cases, however, the order for attachment is passed after the evidence has been recorded under S. 145(4), Cr. P.C and the Magistrate has considered the same, but he is either unable to decide as to which party is in possession or comes to the conclusion that none of the parties is in possession. To be more explicit, the attachment order in the second and third cases is the last act of the court, passed at stage when the inquiry under S. 145 Cr. P.C is over but the evidence is not such that the Magistrate can hold one party or the other in possession of the disputed property under S. 145(6) Cr. P.C

    7. The above enunciation of the law is supported by my earlier decision also in Smt. Prem Lata v. Ram Lubhaya, reported in 1978 All Cri C 336 : (1978 Cr. L.J 1822). Even in that I have clarified the legal position though in a different phraseology.

    8. Counsel for the applicant has placed reliance on a division bench case of this court, Sohan Lal Burman v. State of U.P reported in 1977 All Cri C 169 : (1977 Cri LJ 1322) and on its basis it has been urged that in either of the three situations, mentioned above, the proceeding under S. 145 Cr. P.C comes to an end the Magistrate to stay his hands completely. The controversy, after attachment has to be resolved by the civil Court. It makes no difference whether the attachment is an emergency attachment or an attachment on account of the inability of the Magistrate to decide which of the two contesting parties are in possession or because he comes to the conclusion that none of the contesting parties are in actual possession of the disputed land. Had the position rested there, I would have been bound by the decision of the division bench and if I disagreed, the proper course open to me was to make a reference to a larger bench but that is not necessary at all because of the decision of the Supreme Court in Chandu Naik v. Sita Ram, reported in (1978) 1 SCC 210 : AIR 1978 SC 333. In that Supreme Court decision Mr. Justice Untwalia made the following observations (at p. 335):

    “For the guidance of the Magistrate, we think it expedient in the interest of justice to indicate briefly as to how the Magistrate is to proceed for disposing of the proceeding.

    The Magistrate, in the first instance, will try to conclude the proceeding in accordance with the various provisions of S. 145 of the Code. If he is able to declare the possession of either party on consideration of the evidence adduced or to be adduced before him he would do so. In that event the other party will be forbidden from creating any disturbance of the possession including the deemed possession, in case the application of the proviso to sub-sec. (4) is found necessary of the party declared in possession. The Magistrate, then will have to withdraw the attachment in accordance with the proviso to sub-s. (1) of S. 146 because as per his order declaring a party in possession, there would be no longer any likelihood of the breach of the peace with regard to the subject of dispute. The party not found in possession by the Magistrate will have to seek the redress of his grievance, if any, elsewhere. If, however, the Magistrate decides that none of the parties was in possession of the disputed property on the date of the order made under sub-sec. (1) of S. 145 or if he is unable to satisfy himself as to which of them was in possession of the subject of dispute he need not lift the attachment until a competent court had determined the rights of the parties as provided for in S. 146(1). In such a situation recourse, if necessary, may be taken to sub-s. (2) of S. 146 of the Code either by the Magistrate or a civil court, as the case may be.”

    9. This interpretation of the law, as given by the Supreme Court is totally in keeping with view which I am expressing now and which I expressed earlier also. Even an obiter of the Supreme Court is binding upon the subordinate courts. In this view of the matter, I am of the opinion that there is no controversy now left open to decide with regard to the interpretation of S. 146(1), Cr. P.C

    10. Reverting now to the facts of the case, the position appears to be as follows. The Magistrate after consideration of the evidence on the record, had come to the conclusion that the apprehension of breach of peace continued to exist. He therefore, rejected the application of Bisso Mal for dropping the proceeding vide his order dated 31st March, 1978. This order of the Magistrate was passed after considering the objection of Bisso Mal, the police report and the affidavit filed by Govind Prasad as also the pendency of the civil suit between the parties. There can be no doubt that the question whether an apprehension of breach of peace exist or not, is the subjective satisfaction of the Magistrate on the basis of the record. He has, after taking all these facts into consideration, rightly held that the apprehension of breach of peace continues to exist. The Sessions Judge was not correct in his view that since the police report on the earlier two occasions had been accepted, with regard to the existence of the apprehension of breach of peace. Therefore, the third time when the police reported that there was no apprehension of breach of peace, that report should also have been accepted by the Magistrate. There is no warrant in law for such a reasoning at all. The Sessions Judge also appears to be under the mistaken belief that the order of the Magistrate continuing the attachment was passed merely on the basis of the police report. That is not the correct factual position. As I have mentioned above, several factors were taken into consideration before the Magistrate passed his order dated 31st March, 1978. In my opinion, therefore, the order of the Sessions Judge in so far as it directs the dropping of the proceeding under S. 145, Cr. P.C by the Magistrate is an illegal order and must be set aside.

    11. With regard to the attachment of the property, the Magistrate has directed the same to continue till the rights of the parties are decided by the civil court. Herein the Magistrate has erred. The order of attachment in the circumstances of the present case was one of the emergency. As such it should be allowed to continue till such stage as the inquiry under S. 145(4) is completed and the Magistrate has given his decision under S. 145(6), Cr. P.C admittedly, on the facts which I have given above, the statement of Bisso Mal had only been recorded in part, that was continuing when the impugned order dated 19th April, 1976 was passed. The inquiry had not been completed. Learned counsel has urged that order dated 19th April, 1976 has become final because no party has gone up in revision or in writ petition for quashing that order. I do not agree with this contention. As a court of revision the entire record is before me and this court has ample powers for correcting any illegality or irregularity in the proceeding, even though no revision may have been filed by the parties. In my opinion, the order dated 19th April, 1976 passed by the Magistrate in so far as it directs the attachment of the property till the decision of the rights of the parties by a Civil Court, is an illegal order and must also be modified to the extent that the attachment would only continue till the inquiry under S. 145(4), Cr. P.C had been completed and the Magistrate has given a decision under S. 145(6), Cr. P.C The order of the Sessions Judge also, in so far as it directs the Magistrate to withdraw the attachment is an illegal order and that too must be set aside.

    12. Lastly there is no warrant in law at all for dropping the proceeding under S. 145, Cr. P.C the order of the Sessions Judge to that effect is clearly illegal.

    13. As a matter of fact, the correct procedure now to be followed by the Magistrate is to keep the property under attachment and to proceed with the completion of the inquiry under Section 145(4), Cr. P.C and thereafter to give his decision under Section 145(6), Cr. P.C The mere pendency of a civil suit is no bar to the continuance of criminal proceeding under S. 145, Cr. P.C If however, after the inquiry is completed, the Magistrate is unable to decide as to which party is in possession in that event, it will be open to him to pass another order under S. 146, Cr. P.C attaching the property till the rights of the parties are decided by the civil court.

    14. Having thus discussed the entire law on the subject and the facts of the case, I am of the opinion that this revision application must be allowed. The impugned order of the Sessions Judge dated 3rd Aug., 78, is hereby quashed. The order of the Magistrate dated 19th April, 1976 in so far as it relates to the attachment of the property till the rights of the parties are decided by the civil court is also modified to the extent that the attachment shall continue during the pendency of the inquiry under S. 145(4), Cr. P.C The Magistrate is now directed to proceed with the completion of the inquiry in accordance with the law in the light of the observations, made by me above.

    15. Order accordingly.

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    Comments

    Govind Prasad v. Bisso Mal
    (Jan 12, 1979)