CAJITAN A. D'SOUZA Vs. STATE

JUDGEMENT

(1.) THIS petition under Articles 226 and 227 of the Constitution of India raises a question of some importance regarding the scope and ambit of Section 146 of the Code of Criminal Procedure, 1973, hereinafter referred to as 'the new Code.'

(2.) THE facts giving rise to this petition are few and may be stated thus : On June 6, 1975, respondent No. 3 Harchandrai Vanjumal Santani filed an application before the Executive Magistrate, who is respondent No. 2 to this petition, under Section 145 of the new Code against the petitioners. The dispute regarding possession relates to shop premises admeasuring 6' 6' known as 'Lalit Ladies' Own Store' at Shop No. 1, Raut Chawl, Opposite Sitladevi Temple, Mahim. The respondent No. 2 passed, thereon a preliminary order under Section 145(1) as he was satisfied that there was a dispute between the parties likely to cause a broach of the peace concerning the said premises. On June 13, 1975, the respondent No. 3 made another application to attach the property in dispute under Section 146(1) on the ground that the case was one of emergency. This application was granted by respondent No. 2 and he attached the property under Section 146(1) till the final decision of the proceedings under Section 145. On August 19, 1975, the petitioners filed a written statement denying the allegations made against them by respondent No. 3. Thereafter, on February 21, 1976, the petitioners presented an application contending that in view of the order of attachment passed under Section 146(1), the Magistrate had since the passing of the order become functus officio, and he had no jurisdiction to proceed further in the matter. They contended that in the circumstances, the only course open to the parties was to approach a competent Court to get their respective rights determined in respect of the possession of the disputed premises. By his order dated April 17, 1976, the respondent No. 2 rejected the contentions raised by the petitioners and held that the mere passing of the order of attachment under Section 146(1) on the ground of the existence of emergency is no bar to further proceedings under Section 145 being held and he was competent to proceed with the matter. It is this order of the Magistrate which has been challenged by the petitioners in this writ petition.

(3.) ON the other hand, Mr. Jaysinghani, the learned advocate appearing for respondent No. 3, and Mr. Hudlikar, the learned Assistant Government Pleader, submitted before us that on a true construction of the provisions of Sections 145 and 146(1) of the new Code, the Magistrate's power to decide the dispute relating to possession cannot come to an end merely because the Magistrate considered the case to be one of emergency and attached the subject of dispute. They submitted that the provisions of Section 146(1) have to be read along with Section 143; and having regard to the scheme laid down under the said provisions, the Magistrate's order of attachment would be hold to be merely an interim order which must be operative till the final disposal of the proceedings by the Magistrate.