THOPPIL SANKARANARAYANA PANICKER Vs. ACHUTHANKUTTY NAIR
HIGH COURT OF KERALA
THOPPIL SANKARANARAYANA PANICKER
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(1.) The first of these revision petitions is against a preliminary order passed by the Executive First Class Magistrate under S.145 of the Code of Criminal Procedure; and the second revision petition is against an order passed by the same Executive First Class Magistrate under S.112 of the Code. The subject matter of these revision petitions is the same.
(2.) The first point argued by the counsel of the petitioners in Crl. R. P. No. 236 of 1968 is that the magistrate has no power to appoint a receiver under S.145(4) of the Code: he has power to appoint a receiver only under S.146(2). There are no recent authorities on this question; and there is also difference of opinion among some of the High Courts. In Diwan Chand v. Emperor ( AIR 1929 Lah. 223 ) Dalip Singh J. of the Lahore High Court, following a decision of the Patna High Court and also an old decision of the Madras High Court, held that the magistrate had no power under S.145(4) to appoint a receiver. According to this decision, the magistrate has power only under S.146(2) to appoint a receiver, because that provision specifically confers such power on the magistrate; whereas, no such power is conferred on him by S.145(4). Ramakrishnan Pillai v. S. Narayana Chettiar (1933 Madras Weekly Notes 917) by Burn J. is a similar ruling. The contrary opinion is expressed in an old Division Bench ruling of the Madras High Court in Gopala Aiyar v. Krishnaswamy Iyer (11 Law Weekly 459). Sadasiva Aiyar and Burn JJ. held that a magistrate had power to appoint a receiver under S.145 of the Code of Criminal Procedure, though the powers of such a receiver might not be the same as those of one appointed under S.146(2). Yet another decision taking the same view is the Division Bench ruling of the Travancore Cochin High Court in Joshua Sankaran v. Varghese Jacob (AIR 1955 TC 190). Sankaran and Vithayathil JJ held that the magistrate was in order in exercising his jurisdiction under S.145 of the Code and attaching the property and placing the same in the possession of a receiver. In the last case, the question that came up for consideration was whether the presence of a receiver appointed by a civil court was a bar to the appointment of a receiver under S.145(4) of the Code. Their Lordships, after obtaining a report which showed that no receiver appointed by the civil court was functioning, held that the appointment of a receiver by the magistrate under S.145(4) of the Code was proper.
(3.) It is not disputed that under S.145(4) the magistrate has jurisdiction to attach the property. If he has such power to attach, I fail to see why he should not be clothed with the power of appointing a receiver to take charge of the attached property. The reasoning of the Lahore High Court is that a magistrate attaching under S.145(4) should not dispossess the person in possession of the property. There may be cases where it may not be possible to find out who was in possession at the time of the attachment; and in such a case, the appointment of a receiver to take charge of the property might become essential. Even in cases where the person in possession is known, the receiver may allow the person to continue in possession under him; and for continuing such person in possession, it need not be held that the court has no power to appoint a receiver. It may be that the powers of the receiver appointed under S.145(4) are different from the powers of a receiver appointed under S.146(2). Still, in my opinion, the magistrate acting under S.145(4) must have the power not merely to attach the property, but also to appoint a receiver to take charge of the same. The appointment of the receiver by the Executive First Class Magistrate in this case is therefore proper.;
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