LexMATHURALAL versus BHANWARLAL & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A • 620 MATHURALAL v. BHANWARLAL & ANR. September 13, 1979 (D. A. DESAI AND 0. CHINNAPPA REDDY, JJ.] Code of Criminal Procedure, 1973-Ss. 145 · and 146-Scope of-Magis- . -Irate if competent to proceed with enquiry after attaching the property ·in dis-· pute. I Apprehending breach of peace on account of a dispute over a house bet- C ween the appellant and the respondent the Sub-Divisional Magistrate passed a preliminary order under s. 145(1), Cr.P.C., 1973 and later attached the sub· ject matter of dispute under ~- 146(1) on the ground that it was a case of· emergency. The appellant's objection that once the subject of the dispute had been attached under s. 146, he was not competent to proceed with the enquiry under s. 145 was overruled by the Magistrate. Having failed in his revision. petitions before the Sessions Judge and the High Court the appellant preferred· D an appeal to this Court. It was contended on behalf of the appellant that while under the previous Code it was permissible to attach the subject of dispute pending enquiry by the Magistrate as contemplated by s. 145 such attachment pending decision by the Magistrate was not permissible under the present Code and that once the ' Magistrate effected an attachment he had nothing further to do except await. -f. E the decision or the direction of the civil court. F G H • Dismissing the appeal. HELD : It is wrong to say that the Magistrate's jurisdiction ends as soon. as an attachmen.t is made on the ground of emergency. !-'i32 q 1. (a)· Sections 145 and 146 of the Criminal Procedure Code together con- stitute a scheme for the resolution of a situation where there is a likelihood. of a breach of the peace because of a dispute concerning any land or water or their boundaries. If s. 146 is torn out of its setting and read independently of s .. 145, it is capable of being construed to mean that once an attachment is effected in any of the three situations mentioned therein, the dispute can only be resolved by a competent Court and not by the Magistrate effecting the attachment. But s. 146 cannot be so separated from. s. 145. It can only be: read in the context of s. 145. Contextual construction m~t prevail over isola~ tionist construction. That is one of the first principles of construction. [629 A-C] (b) On being satisfied about the existence of a dispute likely to cause a breach of peace, the Magistrate issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statement. · On perusal of the written statements he would vro- ceed to record eviden,ce to decide ,which of the parties was in possession on the date of the preliminary order. If he decides tbat one of the parties was- in p06Session he declares possession of such party. If on the other MATHURALAL v. BHANWARLAL 621 hand · he is unable to decide who was in possession or if he is of opinion that none of the· parties was in such possession, he may say so.; If he. decides that one of the parties was in possession he declares the possession of such . property. In the other two situations he attaches the property. Thus a pro- ceeding begu'n with a preliminary . order must be followed up by an enquiry and end with the Magistrate decicJing in OQ.e of three ways and making con- sequential orders. [630 A-D] (c) The Magistrate may, however, stop the proceedings at any time if one or the other of the parties satisfies him "that there has never been or· that ther.e is no longer any dispute likely to cause a. breach of the peace. The :Magistrate then cancels the preliminary order vide s. 145(5) except in this event a pro- ceeding initiated by a preliminary order under s. 145(1-) must run its full course. [630 E1 (d) One of the situations provided under s. 146(1) is that in a case of emergency a Magistrate ·may attach the property at any time after making the preliminary order. There is no express stipulation in s. 146 that the jurisdiction Olf the Magistrate ends with the attachment. Nor is it implied. The obligation to proceed with the enquiry as prescribe~ by s. 145(4) is against any such implication. [630 G] · 2. The position under the section before its amendment in 1955 was that the parties that the right to adduce evidence and the Magistrate could take .further evidence if he so desired. There were two principal changes in the s:ction ~ a result of the
Excerpt shown. Read the full judgment & AI analysis in Lexace.