B.G. Thimmappaiah and ors. Vs. Gurusiddappa and ors. - Court Judgment

Excerpt:
- indian penal code, 1890.sections 306, 34 & 107: [r.b. naik,j] abetment of suicide accused wife not desirous of making a living with her husband living in a joint family - left the house of her husband and started living in house of parents she insisted that her husband should provide a luxurious bungalow to lead a luxurious life and if he is incapable of organizing big house, he should hang himself legal notice from husband was not replied -deceased husband went to house of accused and made a request that accused should join him deceased was harassed and insulted by wife and parents-in-law he felt that he should end his life - consumed poison - police after investigation filed charge-sheet against his wife i.e., accused under section 306 read with section 34 of the ipc - accused sought discharge - trial court rejected request for discharge and framed charges revision against - held, if refusal of wife to make a living with him is taken seriously by deceased and taken drastic step of committing suicide the accused-wife cannot be held responsible for the same. averments and statements are not sufficient to hold charge against accused for offences under section 306 for abatement of suicide as defined in section 107. order of trial court was set aside and accused was discharged of offence. -- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 227: discharge of accused - wife refusing to live with her husband, for reasons best known to her husband taking a drastic step of committing suicide complaint against wife, her mother and her brothers police filing charge sheet against the accused persons for an offence punishable under section 306 read with section 34 i.p.c., accused persons sought for discharge order of the trial judge directing framing of charges against the accused/petitioners for an offence punishable under section 306 read with section 34 india penal code revision against held, material on record reveals that there was no compatibility between husband and wife. the first petitioner was refusing to live with her husband, her husband, for reasons best known to her or for the reasons as stated in the complaint. if such refusal is taken serious by the husband and he takes a drastic step of committing suicide, the petitioners cannot be held responsible for the same. further, though a meticulous analysis of the material of the prosecution is not permissible at the stage of framing of charge, even a cursory reading of the statements and averments in the complaint would to establish that the grounds made out by the prosecution are not sufficient to hold that a charge should be framed against the accused for the offences punishable under section 306 i.p.c., for abatement of suicide as defined under section 107 i.p.c., the trial court has failed to appreciate this aspect of the matter. the entire material of the prosecution even if un-rebutted, there is no possibility of the petitioners being reasonably to be held guilty of the offence for which they are charged. - there were also standing crops of ragi, avare and jowar and the learned magistrate considered that there is likelihood of breach of the peace and upon satisfaction by the report of the police sub-inspector, attached the lands as well as the crops. 2. it is more than clear from the scheme of sections 145 and 146 of the criminal procedure code, that the executive magistrate has to be satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists and upon that satisfaction he makes an order in writing stating the grounds of his reasons of so satisfying and requiring the parties to attend the court in person or by pleader on a specific date and time and to put in written statement as respects the fact of actual possession of the subject-matter of dispute.orderd.b. lal, j.1. this is a petition under sections 482 of the criminal procedure code and is directed against the order of the sub-divisional magistrate, bangalore causing attachment of the disputed land and appointment of a receiver in respect thereof, presumably under section 146 of the said code. as the order of the learned magistrate indicates, the police sub-inspector, yeshawanthapur filed a report under section 145 of the criminal procedure code, stating that in respect of survey numbers 37, 38 and 41 of that village a dispute likely to cause breach of the peace existed between the petitioners who were the second party and respondents 1 to 5, who were the first party before him. it was mentioned that one of the parties applied to the land reforms tribunal for conferring occupancy rights and besides that several complaints were filed by the respective parties claiming possession in their favour. there were also standing crops of ragi, avare and jowar and the learned magistrate considered that there is likelihood of breach of the peace and upon satisfaction by the report of the police sub-inspector, attached the lands as well as the crops. she also appointed a receiver of the property. the said order of the learned sub-divisional magistrate is being sought to be quashed by the present application.2. it is more than clear from the scheme of sections 145 and 146 of the criminal procedure code, that the executive magistrate has to be satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists and upon that satisfaction he makes an order in writing stating the grounds of his reasons of so satisfying and requiring the parties to attend the court in person or by pleader on a specific date and time and to put in written statement as respects the fact of actual possession of the subject-matter of dispute. instead of making that preliminary order, the executive magistrate, in the instant case, has straightway passed the order of attachment and also appointment of a receiver. that order was made under section 146 of the criminal procedure code of which the opening words are : that it is only after the magistrate passes the preliminary order under sub-section (1) of section 145 of the criminal procedure code, that he can make an order of attachment and appointment of a receiver. in a case where the preliminary order is not passed, the very order of attachment and appointment of receiver shall be vitiated. there is an affidavit filed by one of the petitioners that no order besides the impugned one is passed by the learned sub-divisional magistrate.3. that being the position, any amount of persuasion on the part of police sub-inspector would not have authorised the magistrate to order for attachment or for appointment of receiver. the learned sub-divisional magistrate could however apply her mind for the preliminary order under section 145(1) of the cr. p.c., and in case she thought that a preliminary order was required to be passed, she should have passed that order in the first instance. only thereafter certain conditions being made out, she could make the order of attachment or appointment of receiver. obviously, she has not done so and her order is prima facie illegal.4. since the abuse of the process of the court has resulted and ends of justice have got to be preserved, in my opinion, the order of the magistrate need be set aside. accordingly, i allow the petition and set aside the order of the magistrate and send the case back to her for de novo consideration under section 145 of the criminal procedure code, and in case she feels that a preliminary order is required to be passed, she may do so. only thereafter if proper conditions are made out, an order for attachment or appointment of receiver can be made.

Judgment:
ORDER

D.B. Lal, J.

1. This is a petition Under Sections 482 of the Criminal Procedure Code and is directed against the order of the Sub-Divisional Magistrate, Bangalore causing attachment of the disputed land and appointment of a receiver in respect thereof, presumably Under Section 146 of the said Code. As the order of the learned Magistrate indicates, the Police Sub-Inspector, Yeshawanthapur filed a report Under Section 145 of the Criminal Procedure Code, stating that in respect of Survey numbers 37, 38 and 41 of that village a dispute likely to cause breach of the peace existed between the petitioners who were the second party and respondents 1 to 5, who were the first party before him. It was mentioned that one of the parties applied to the Land Reforms Tribunal for conferring occupancy rights and besides that several complaints were filed by the respective parties claiming possession in their favour. There were also standing crops of Ragi, Avare and Jowar and the learned Magistrate considered that there is likelihood of breach of the peace and upon satisfaction by the report of the Police Sub-Inspector, attached the lands as well as the crops. She also appointed a receiver of the property. The said order of the learned Sub-Divisional Magistrate is being sought to be quashed by the present application.

2. It is more than clear from the scheme of Sections 145 and 146 of the Criminal Procedure Code, that the Executive Magistrate has to be satisfied from a report of a Police Officer or upon other information that a dispute likely to cause a breach of the peace exists and upon that satisfaction he makes an order in writing stating the grounds of his reasons of so satisfying and requiring the parties to attend the Court in person or by pleader on a specific date and time and to put in written statement as respects the fact of actual possession of the subject-matter of dispute. Instead of making that preliminary order, the Executive Magistrate, in the instant case, has straightway passed the order of attachment and also appointment of a receiver. That order was made Under Section 146 of the Criminal Procedure Code of which the opening words are : that it is only after the Magistrate passes the preliminary order Under Sub-section (1) of Section 145 of the Criminal Procedure Code, that he can make an order of attachment and appointment of a receiver. In a case where the preliminary order is not passed, the very order of attachment and appointment of receiver shall be vitiated. There is an affidavit filed by one of the petitioners that no order besides the impugned one is passed by the learned Sub-Divisional Magistrate.

3. That being the position, any amount of persuasion on the part of Police Sub-Inspector would not have authorised the Magistrate to order for attachment or for appointment of receiver. The learned Sub-Divisional Magistrate could however apply her mind for the preliminary order Under Section 145(1) of the Cr. P.C., and in case she thought that a preliminary order was required to be passed, she should have passed that order in the first instance. Only thereafter certain conditions being made out, she could make the order of attachment or appointment of receiver. Obviously, she has not done so and her order is prima facie illegal.

4. Since the abuse of the process of the Court has resulted and ends of justice have got to be preserved, in my opinion, the order of the Magistrate need be set aside. Accordingly, I allow the petition and set aside the order of the Magistrate and send the case back to her for de novo consideration Under Section 145 of the Criminal Procedure Code, and in case she feels that a preliminary order is required to be passed, she may do so. Only thereafter if proper conditions are made out, an order for attachment or appointment of receiver can be made.