ismail Sk. and anr. Vs. Bani HussaIn and ors. - Court Judgment

Excerpt:
- - 3. brief facts giving rise to the filing of the criminal proceeding as well as this revision application are that the petitioners are claiming the tile and possession over the disputed land by way of inheritance, whereas the respondents are claiming tile and interest on the basis of the purchase of the disputed land from the predecessor-in-interest of the disputed land. 7. for better appreciation of the rival contentions it is necessary to reproduce below the relevant parts of the impugned order, which are as below: examined the records and satisfied myself that there is every likelihood of breach of peace and tranquility over the disputed land i hereby attached the disputed land. section 145(1) whenever an executive magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute 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 of the subject of dispute. provided *(2) *9. a bare perusal of the impugned order clearly shows that the case property has been brought under attachment without drawing up a proceeding under section 145 cr. thus a plain reading of section 145(1) and section 146(1) of the code clearly goes to show that the order under section 146(1) can only be passed after the magistrate makes the order under section 145(1) of the code. 11. i endorse the views taken by the hon'ble patna high court as well as by this court and hold that drawing up a proceeding under section 145 is a pre-requisite and sine-qua-non for invoking section 146 cr. identical view has also been taken by this court in safique ali (supra). going by the provisions of law, i also do not find any difficulty to hold that attachment order must indicate that the magistrate had satisfied himself that any of the three contingencies mentioned in section 146 did exist on the date of passing of the order. b.d. agarwal, j.1. this criminal petition under section 482 of the code of criminal procedure has been filed against the order dated 5.9.2006 passed by shri a.c. marak, learned magistrate first class, west garo hills, tura in misc. case no. 36/2006. by the impugned order, the learned magistrate has attached the disputed land purportedly in exercise of his power conferred under section 146(1) of the code of criminal procedure (briefly 'cr.p.c.'). being aggrieved with the order of attachment, the second party in the trial court has preferred this revision application.2. i have heard shri a.s. siddique, learned counsel for the petitioners and shri a.h. hazarika, learned counsel for the respondents. i have also perused the impugned order.3. brief facts giving rise to the filing of the criminal proceeding as well as this revision application are that the petitioners are claiming the tile and possession over the disputed land by way of inheritance, whereas the respondents are claiming tile and interest on the basis of the purchase of the disputed land from the predecessor-in-interest of the disputed land. once earlier also, this matter had come to this court vide civil rule no. 30(sh)/98. while disposing of the said petition on 5.9.1999, this court hoped that the dispute will be amicably settled in between the parties. however, no extra judicial settlement could be reached and at the same time both the parties made all efforts to take possession of the disputed land.4. in the midst of the aforesaid dispute, the respondents filed an application before the addl. district magistrate judicial) tura on 28.08.2006 alleging that about a week ago the petitioners/second party members had threatened and dispossessed them. this application was subsequently transferred to the court of magistrate, first class whereupon the impugned order was passed.5. shri a.s. siddique, learned counsel for the petitioners has assailed the criminal proceeding and more particularly the impugned order on the ground that cognizance of the complaint has been taken without adhering to the provisions of law. according to the learned counsel, before bringing the disputed land under attachment, a magistrate is bound to draw-up a proceeding under section 145 cr.pc. however, in the case in hand, the impugned order was passed without drawing up a formal proceeding. the learned counsel also submitted that even for passing an attachment order, the magistrate is required to assign his reasons, as contemplated under section 146 cr.p.c.6. on the other hand, shri hazarika, learned counsel for the respondents submitted that the impugned order has been passed on the basis of the statements made in the complaint. according to the learned counsel, the subjective satisfaction of the magistrate cannot be questioned in a petition under section 482 cr.pc.7. for better appreciation of the rival contentions it is necessary to reproduce below the relevant parts of the impugned order, which are as below:5.9.2006. c.r. received on transfer from learned additional district magistrate.perused the c.r. and heard the submission of the counsel for the 1st party who submits that there is imminent danger to the peace over the disputed land. and it is highly necessary to prevent the breach of peace by attaching the disputed land. examined the records and satisfied myself that there is every likelihood of breach of peace and tranquility over the disputed land i hereby attached the disputed land.8. it is hardly necessary to say that holding of proceedings under section 145 is a condition precedent for passing any interlocutory order. that, there can be no departure from this mandatory requirement would be clear from the introductory parts of sections 145 and 146 cr.p.c, which are reproduced below:section 145(1) whenever an executive magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute 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 of the subject of dispute.(2)to (10) ***** ***** *****section 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 the dispute. under any of these circumstances, section 146(1) of the code empowers the magistrate to attach the subject matter of the dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.provided **** **** ****(2) **** **** ****9. a bare perusal of the impugned order clearly shows that the case property has been brought under attachment without drawing up a proceeding under section 145 cr.pc. in the case of kisun yadav v. asharfi yadav (1991) crl. lj 160, the hon'ble patna high court has made the following observations regarding the necessity to draw up a proceeding under section 145 and also assigning the reasons for taking action under section 146. the relevant observations are extracted below:thus a plain reading of section 145(1) and section 146(1) of the code clearly goes to show that the order under section 146(1) can only be passed after the magistrate makes the order under section 145(1) of the code. this is not all. before an order under section 146(1) of the code can be passed by the magistrate he has to satisfy himself that the (1) the case is one of emergency, or (2) if he decides that none of the parties was then in such possession as is referred to in section 145, or (3) if he is unable to satisfy himself as to which of them was then in such possession of the subject of the dispute. under any of these circumstances, section 146(1) of the code empowers the magistrate to attach the subject matter of the dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.10. in the case of safique ali v. surajan bibi reported in (2004) 2 glr 207 : 2004 (suppl.) glt263, the gauhati high court has also made identical observations in the following words:it may be noted that sections 145 and 146 of the code together constitute a claim for resolution of a situation where there is likelihood of breach of peace and section 146 should not be separated from section 145 and it can only be read in the context of section 145 of cr.pc.11. i endorse the views taken by the hon'ble patna high court as well as by this court and hold that drawing up a proceeding under section 145 is a pre-requisite and sine-qua-non for invoking section 146 cr.pc. in other words, i find that if an order of attachment is passed straight away by-passing the mandatory requirements of section 145 in the proceeding can be termed as nonest in law. as noted earlier, the impugned order has been passed without drawing up a formal proceeding under section 145 cr.pc. consequently, it has no legal sancity and, hence, not sustainable in the eye of law.12. coming to the merit of the impugned order, i also find that this order suffers from legal infirmities. under section 146(1) cr.pc, a magistrate can attach the subject of dispute or appoint a receiver, if any of the three circumstances given therein are fulfilled. the circumstances are (i) the magistrate considers the case to be one of emergency; (ii) the magistrate finds that none of the parties was then in possession of the subject matter of the dispute and (iii) the magistrate is unable to satisfy himself as to which of the contending parties was in possession of the subject of dispute.13. as noted earlier, the hon'ble patna high court has held that under any of the three contingencies an order of attachment of the disputed property can be passed. identical view has also been taken by this court in safique ali (supra). going by the provisions of law, i also do not find any difficulty to hold that attachment order must indicate that the magistrate had satisfied himself that any of the three contingencies mentioned in section 146 did exist on the date of passing of the order. however, the impugned order speaks nothing as to what prompted the trial magistrate to invoke section 146. on this ground also the impugned order is not sustainable.14. a copy of the complaint filed by the respondent before the magistrate has also been enclosed with this criminal petition. from this complaint petition, i find that the alleged incident took place on 20.08.2006, whereas the complaint was filed after eight days, without any explanation for the delay. the complaint/petition under section 145 cr.pc. was also not supported by any affidavit. under such circumstances, it would have been proper for the magistrate to obtain a police report to ascertain if there was any dispute which was likely to cause breach of peace and that there was an emergency to take judicial custody of the disputed land. any such police report would have also thrown some light as to which of the parties was in possession of the land etc. however, the magistrate did not think it necessary to seek a police report, although the passing of the impugned order was deferred for a week from the date of filing of the petition. there was also no report before the magistrate that any further incident had taken place during 20.8.2006 till the date of passing of the order to take a view that there was an emergency.15. in view of the above discussion, it appears to me that the impugned order has been passed mechanically and without application of judicial mind. i make it clear that i am interfering with the impugned order not on the ground that the impugned order was passed without fulfilling the requisite subjective satisfaction but on the ground of non-compliance of mandatory provisions of sections 145 and 146.for the reasons assigned hereinabove, the criminal petition stands allowed. the proceeding under section 145 read with section 146 of the code of criminal proceeding is hereby quashed.

Judgment:

B.D. Agarwal, J.

1. This criminal petition under Section 482 of the Code of Criminal Procedure has been filed against the order dated 5.9.2006 passed by Shri A.C. Marak, learned Magistrate First Class, West Garo Hills, Tura in Misc. Case No. 36/2006. By the impugned order, the learned Magistrate has attached the disputed land purportedly in exercise of his power conferred under Section 146(1) of the Code of Criminal Procedure (briefly 'Cr.P.C.'). Being aggrieved with the order of attachment, the second party in the trial court has preferred this revision application.

2. I have heard Shri A.S. Siddique, learned Counsel for the petitioners and Shri A.H. Hazarika, learned Counsel for the respondents. I have also perused the impugned order.

3. Brief facts giving rise to the filing of the criminal proceeding as well as this revision application are that the petitioners are claiming the tile and possession over the disputed land by way of inheritance, whereas the respondents are claiming tile and interest on the basis of the purchase of the disputed land from the predecessor-in-interest of the disputed land. Once earlier also, this matter had come to this Court vide Civil Rule No. 30(SH)/98. While disposing of the said petition on 5.9.1999, this Court hoped that the dispute will be amicably settled in between the parties. However, no extra judicial settlement could be reached and at the same time both the parties made all efforts to take possession of the disputed land.

4. In the midst of the aforesaid dispute, the respondents filed an application before the Addl. District Magistrate Judicial) Tura on 28.08.2006 alleging that about a week ago the petitioners/second party members had threatened and dispossessed them. This application was subsequently transferred to the Court of Magistrate, First Class whereupon the impugned order was passed.

5. Shri A.S. Siddique, learned Counsel for the petitioners has assailed the criminal proceeding and more particularly the impugned order on the ground that cognizance of the complaint has been taken without adhering to the provisions of law. According to the learned Counsel, before bringing the disputed land under attachment, a Magistrate is bound to draw-up a proceeding under Section 145 Cr.PC. However, in the case in hand, the impugned order was passed without drawing up a formal proceeding. The learned Counsel also submitted that even for passing an attachment order, the Magistrate is required to assign his reasons, as contemplated under Section 146 Cr.P.C.

6. On the other hand, Shri Hazarika, learned Counsel for the respondents submitted that the impugned order has been passed on the basis of the statements made in the complaint. According to the learned Counsel, the subjective satisfaction of the Magistrate cannot be questioned in a petition under Section 482 Cr.PC.

7. For better appreciation of the rival contentions it is necessary to reproduce below the relevant parts of the impugned order, which are as below:

5.9.2006. C.R. received on transfer from learned Additional District Magistrate.

Perused the C.R. and heard the submission of the Counsel for the 1st party who submits that there is imminent danger to the peace over the disputed land. And it is highly necessary to prevent the breach of peace by attaching the disputed land. Examined the records and satisfied myself that there is every likelihood of breach of peace and tranquility over the disputed land I hereby attached the disputed land.

8. It is hardly necessary to say that holding of proceedings under Section 145 is a condition precedent for passing any interlocutory order. That, there can be no departure from this mandatory requirement would be clear from the introductory parts of Sections 145 and 146 Cr.P.C, which are reproduced below:

Section 145(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute 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 of the subject of dispute.

(2)to (10) ***** ***** *****

Section 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 the dispute. Under any of these circumstances, Section 146(1) of the code empowers the Magistrate to attach the subject matter of the dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.

Provided **** **** ****

(2) **** **** ****

9. A bare perusal of the impugned order clearly shows that the case property has been brought under attachment without drawing up a proceeding under Section 145 Cr.PC. In the case of Kisun Yadav v. Asharfi Yadav (1991) Crl. LJ 160, the Hon'ble Patna High Court has made the following observations regarding the necessity to draw up a proceeding under Section 145 and also assigning the reasons for taking action under Section 146. The relevant observations are extracted below:

Thus a plain reading of Section 145(1) and Section 146(1) of the Code clearly goes to show that the order under Section 146(1) can only be passed after the Magistrate makes the order under Section 145(1) of the Code. This is not all. Before an order under Section 146(1) of the Code can be passed by the Magistrate he has to satisfy himself that the (1) the case is one of emergency, or (2) if he decides that none of the parties was then in such possession as is referred to in Section 145, or (3) if he is unable to satisfy himself as to which of them was then in such possession of the subject of the dispute. Under any of these circumstances, Section 146(1) of the Code empowers the Magistrate to attach the subject matter of the dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.

10. In the case of Safique Ali v. Surajan Bibi reported in (2004) 2 GLR 207 : 2004 (Suppl.) GLT263, the Gauhati High Court has also made identical observations in the following words:

It may be noted that Sections 145 and 146 of the Code together constitute a claim for resolution of a situation where there is likelihood of breach of peace and Section 146 should not be separated from Section 145 and it can only be read in the context of Section 145 of Cr.PC.

11. I endorse the views taken by the Hon'ble Patna High Court as well as by this Court and hold that drawing up a proceeding under Section 145 is a pre-requisite and sine-qua-non for invoking Section 146 Cr.PC. In other words, I find that if an order of attachment is passed straight away by-passing the mandatory requirements of Section 145 in the proceeding can be termed as nonest in law. As noted earlier, the impugned order has been passed without drawing up a formal proceeding under Section 145 Cr.PC. Consequently, it has no legal sancity and, hence, not sustainable in the eye of law.

12. Coming to the merit of the impugned order, I also find that this order suffers from legal infirmities. Under Section 146(1) Cr.PC, a Magistrate can attach the subject of dispute or appoint a receiver, if any of the three circumstances given therein are fulfilled. The circumstances are (i) the Magistrate considers the case to be one of emergency; (ii) the Magistrate finds that none of the parties was then in possession of the subject matter of the dispute and (iii) the Magistrate is unable to satisfy himself as to which of the contending parties was in possession of the subject of dispute.

13. As noted earlier, the Hon'ble Patna High Court has held that under any of the three contingencies an order of attachment of the disputed property can be passed. Identical view has also been taken by this Court in Safique Ali (supra). Going by the provisions of law, I also do not find any difficulty to hold that attachment order must indicate that the Magistrate had satisfied himself that any of the three contingencies mentioned in Section 146 did exist on the date of passing of the order. However, the impugned order speaks nothing as to what prompted the trial Magistrate to invoke Section 146. On this ground also the impugned order is not sustainable.

14. A copy of the complaint filed by the respondent before the Magistrate has also been enclosed with this criminal petition. From this complaint petition, I find that the alleged incident took place on 20.08.2006, whereas the complaint was filed after eight days, without any explanation for the delay. The complaint/petition under Section 145 Cr.PC. was also not supported by any affidavit. Under such circumstances, it would have been proper for the Magistrate to obtain a police report to ascertain if there was any dispute which was likely to cause breach of peace and that there was an emergency to take judicial custody of the disputed land. Any such police report would have also thrown some light as to which of the parties was in possession of the land etc. However, the Magistrate did not think it necessary to seek a police report, although the passing of the impugned order was deferred for a week from the date of filing of the petition. There was also no report before the Magistrate that any further incident had taken place during 20.8.2006 till the date of passing of the order to take a view that there was an emergency.

15. In view of the above discussion, it appears to me that the impugned order has been passed mechanically and without application of judicial mind. I make it clear that I am interfering with the impugned order not on the ground that the impugned order was passed without fulfilling the requisite subjective satisfaction but on the ground of non-compliance of mandatory provisions of Sections 145 and 146.

For the reasons assigned hereinabove, the criminal petition stands allowed. The proceeding under Section 145 read with Section 146 of the Code of Criminal Proceeding is hereby quashed.