J.K.MOHANTY, J. -
(1.) THE members of the first party in a proceeding under Section 145, Criminal Procedure Code are petitioners and they challenge the order dated 13 -7 -77 passed by the Executive Magistrate, Nayagarh by which he has stayed further proceedings in Misc. Case 58/75 under Section 145, Criminal Procedure Code as according to him, the disputed land having been put to court auction and the proceeds thereof having been deposited in the court, the subject of dispute should be deemed to have been attached under Section 146 (1), Cr. P.C, and no further proceeding under Section 145, Criminal Procedure Code would continue.
(2.) ON 15 -5 -75 the second party (opposite parties in this case) filed a petition before the court of the S. D. M., Nayagarh to start a proceeding under Section 145, Criminal Procedure Code in respect of the disputed property. The learned Magistrate forwarded the petition to the Officer -in -charge, Odgaon P. S. for enquiry and report. On receiving the police report, the Magistrate was satisfied that a dispute likely to cause breach of the peace existed concerning the disputed land and passed the preliminary order on 6 -8 -74 as follows : -
"Perused the report of the S. I. of police, Odagaon P. S. D/ - 31 -7 -75 under Section 145, Criminal Procedure Code I am satisfied that there is apprehension of imminent breach of the peace and danger to human life concerning the land in dispute between both the parties. Start a proceeding under Section 145, Criminal Procedure Code xx xx."
The proceeding was transferred on the same day to the file of Shri R. C. Mishra, Executive Magistrate, Nayagarh for disposal according to law and the Magistrate issued notice fixing 19 -8 -75 calling upon both the parties to file their written statements and documents etc. if any, in support of their respective claims. On 30 -9 -75 a petition on behalf of the second party members was filed to take action under Section 146, Criminal Procedure Code and the learned Magistrate passed the following order : -
" It is seen that none of the parties has filed their written statements. Put up this petition for consideration after both parties file their written statement, so that the court will be in a position to consider the petition on merit after knowing the claims of both parties."
On 12 -11 -75 after the written statements of both the parties were filed, the learned Magistrate heard both parties regarding the matter of attachment and posted the case for orders to 15 -11 -75. On 15 -11 -75 as the Magistrate was busy otherwise, the case was posted to 22 -11 -75. On 22 -11 -75 as the orders were not ready, he heard both parties regarding preservation of the standing crop and asked the Officer -in -charge of Odgaon P. S. to take care of the standing crop until suitable arrangements were made by the court. On 8.12.1975 a petition of the first party members for dropping the proceeding was considered. The Magistrate after hearing both parties ordered : -
" Let there be a hearing on the claims of the parties regarding their possession. It is reported that all the case lands are not cultivable lands. So far the cultivable lands where now paddy crop is standing, the Sarpanch Bahadajhola Gramapanchayat is appointed as custodian. He is to harvest the standing paddy crop that is there on the lands mentioned below and render necessary accounts to the court. Issue appointment orders accordingly. Since the case lands are vast in quantity, it is necessary to take early steps for disposing of the matter."
As is evident, this order was passed under the provisions of Section 145 (8), Criminal Procedure Code The case was again transferred to Shri S. Swain, Magistrate for disposal. Thereafter the case lingered without any hearing with several adjournments at the instance of both parties. On 6.7.1976 a petition was filed by the first party praying that the second party be directed to begin the case. On 26.7.1976 a petition on behalf of the members of the first party was filed to order auction -sale of the paddy growing lands leaving aside the portions in possession of the first party tenants where they have their homestead, bari and Khalabari etc, on the ground that no arrangement was made for raising the crop etc. and the lands were lying fallow. After hearing both parties, the learned Magistrate allowed the petition and fixed 28 -7 -76 for auction. On 28 -7 -76 the learned Magistrate passed orders that the second party was to begin their case and adduce evidence first and on that day also the paddy lands were auctioned and Narayan Behera being the highest bidder for Rs. 7200/ - auction was knocked down in his favour. On 24 -11 -76 two witnesses on behalf of the second party were examined and the evidence on behalf of the second party was closed on their memo that they would not examine any more witnesses. On 28 -1 -77 the second party filed a memo stating that the disputed lands had been put to auction which means that the property had been attached under Section 146 (1), Criminal Procedure Code and had been kept in court's custody, and this aspect of the matter might be considered. The matter was posted to 25 -2 -77 for hearing on this aspect. Then after several adjournments, on 13 -7 -77 the Magistrate passed the impugned order.
Now the question for determination in this case is whether, in the facts and circumstances of the case as stated above the provisions of Section 146 (1) are attracted and the proceeding under Section 145, Criminal Procedure Code will be continued or not. On behalf of the second party - opposite parties, two decisions of this Court have been cited in support of their case. The first one is the case of Kashinath Sahu v. Dandasi Khatai reported in (1976) 42 Cut LT 913. In that case a preliminary order in respect of a proceeding under Section 145, Criminal Procedure Code was passed on 24 -8 -74 by the Sub -divisional Magistrate, Chatrapur in the following terms : -
"Perused the non -F.I.R. No. 42/74 of Pursothampur P. S. wherein the S. I. Pursothampur P. S. prays for action under Section 145, Criminal Procedure Code against both the parties as there it is likely to occasion breach of peace. Whereas from the P. R. I am satisfied that there exists dispute regarding the possession of the lands scheduled below between Kasinath Sahu hereinafter called the members of the 1st party and Dandasi Khatai, (2) Kasinath Khatai and (3) Biswanath Khatai hereinafter called the members of the 2nd party and the said dispute is likely to occasion breach of peace and it is therefore ordered under Section 145, Criminal Procedure Code prohibiting both the parties from entering into the lands till the proceeding is finally disposed of. The land in question is attached and the Revenue Supervisor K. S. Nagar is appointed as receiver to look after the said lands until further orders. He is directed to put the lands into public auction for the current year in the presence of both the parties after due publication of the notice as required under the Rules. The bid sheet should be furnished to this Court before the date of posting. Both the parties to appear before this Court on 24.9.1974 at 10.00 a.m. and they should file their written statements and produce their evidence in respect of their claim and possession over the said lands."
So in that case on the very same day the Magistrate being satisfied from the materials before him passed orders under Section 145 (1), Criminal Procedure Code and also attached the disputed lands and appointed the Revenue Supervisor as the receiver. This Court held that the provisions for attachment of the disputed land and for appointment of receiver in respect of the same are enjoined only in Section 146 Criminal Procedure Code So it was held that the learned S.D.M. could not have passed orders for attachment and could not have appointed a receiver in respect of the disputed land while exercising powers under Section 145 (1) Criminal Procedure Code The aforesaid order must, therefore, be held to be one under Section 145 (1) as well as one under Section 146 (1) Criminal Procedure Code (New). It was further held that merely because the proceeding continued and the parties filed their respective written statements and affidavits, the order dated 24 -8 -74 does not cease to be an order under Section 146 Criminal Procedure Code The Magistrate was, therefore, fully justified in refusing to proceed with the case any further and directing the parties to approach the competent court for decision. The next case cited was 1977 Cut LR (Cri) 172 : (1977 Cri LJ (NOC) 192) (Theophil Xess v. Chuvan Ekka). In that case the Magistrate on perusal of the papers presented before him passed the order under Section 145 (1) Criminal Procedure Code and directed notice to be issued to the parties to appear before him on a particular date to file written statements in support of their respective claims regarding the fact of actual possession of the property in question and by the same order, on the ground of existence of emergency attached the subject -matter of dispute. It was held in that case that as the Magistrate had already attached the subject of dispute under Section 146 (1) Criminal Procedure Code which he was competent to do, he had no jurisdiction thereafter to proceed with the matter and to pass the impugned order deciding the question of possession in favour of the second party.
(3.) IN both these cases the order under Section 145 (1) Criminal Procedure Code and also the order in terms of Section 146 Criminal Procedure Code were passed by the Magistrates on being satisfied on the materials before them on the same day by the same order and the entire property in dispute was kept under custodia legis. Relying on these decisions it is contended on behalf of the second party -opposite parties that in view of the auction of the paddy lands the proceeding is automatically converted to one under Section 146 Criminal Procedure Code and the pro -visions of Section 146 Criminal Procedure Code are automatically attracted and the property remains under custodia legis and the Magistrate has no jurisdiction to proceed with the case under Section 145 Criminal Procedure Code and he will have to stay further proceedings. On behalf of the first party -petitioners it is contended that where no orders have been passed in terms of Section 146 (1) Criminal Procedure Code which says that if the Magistrate at any time after making the order under sub -sec. (1) of Section 145 considers the case to be one of emergency, then only the provisions of Section 146 are attracted. The word 'considers' means 'to think or deliberate on, to look at attentively or carefully'. So before passing the order, the Magistrate must apply his mind to the facts and circumstances of the case and then to decide as to whether there was any emergency or not and thereafter he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. In this case the Magistrate has not considered the case and has not come to any conclusion as to existence of emergency. Merely because he has auctioned the paddy lands which were lying fallow, it cannot be said that Section 146 Criminal Procedure Code is automatically attracted and the proceeding should be stayed.
So the two decisions cited above are not applicable to the facts and circumstances of this case as in both these cases orders under Section 145 (1) and also in terms of Section 146 Criminal Procedure Code were passed by the very same order and on the very same day on the materials available. Further in this case the paddy lands only have been auctioned and the other lands have been left out. Hence an anomalous position will arise in this case as with respect to a portion of the disputed lands which have been auctioned Section 146 Criminal Procedure Code will be attracted and with respect to the other lands Section 146 Criminal Procedure Code will not be attracted. In this case both parties proceeded with the hearing of the case on the footing that it was a proceeding under Section 145 Criminal Procedure Code, and the second party also led evidence in support of their case. Though the second party filed a petition for taking action under Section 146 Criminal Procedure Code as early as 30 -9 -75, they did not press the same till 13 -7 -77 when the impugned order was passed. As would appear from the order dated 8 -12 -75, the order in terms of Section 145 (8) Criminal Procedure Code was passed and the Sarpanch was appointed as the custodian of the standing crop. Merely because an auction was held only with respect to the paddy lands subsequently, it cannot be said that automatically the provisions of Section 146 Criminal Procedure Code were attracted. The Magistrate in this case has not considered at any time as to whether the case was one of emergency or not and, therefore, he has not also attached the property. Only because some paddy lands were auctioned by the Magistrate, it cannot be said that the Magistrate has passed an order in terms of Section 146 Criminal Procedure Code and the proceeding should be stayed. The parties have all along treated the proceeding as one under Section 145 Criminal Procedure Code If it is now held that with respect to the paddy lands which have been auctioned, provisions of Section 146 Criminal Procedure Code are attracted and the Magistrate cannot proceed further with the case under Section 145 Cr. P, C. to determine the possession of the parties, an anomalous position will arise in that a part of the disputed land will be covered under Section 146 (1) Criminal Procedure Code and with respect to other part it will not be attracted. That means, the Magistrate will stay the proceeding with respect to the paddy lands and he will go on with Section 145 Criminal Procedure Code proceeding with respect to the homestead lands which are not subject to auction.
Three contingencies have been contemplated in which an order of attachment can be passed : -
(1) Where a Magistrate at any time after making the order under sub -sec. (1) of Section 145 considers the case to be one of emergency; (2) If the Magistrate after enquiry holds that none of the parties was in possession on the date of preliminary order or within two months preceding it in case of dispossession; or (3) If the Magistrate is unable to satisfy himself as to which of the parties was in possession on the appropriate date.
It is conceded by both the parties that the last two situations had not arisen in this case. The case may come, if at all under the first contingency. So when the Magistrate after passing order under sub -sec. (1) of Section 145 Criminal Procedure Code considers the case to be one of emergency, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. In my view, in this case there is nothing to show that the Magistrate has considered the case to be one of emergency after the preliminary order was passed under Section 145 (1) Criminal Procedure Code and no further materials were placed before the Magistrate to arrive at a conclusion that there was emergency. No doubt in this case the Magistrate has passed an order to auction the paddy lands which he may not be empowered to do under the provisions of Section 145 Criminal Procedure Code That does not mean that if a Magistrate passes such an order under misconception, the provisions of Section 146 Criminal Procedure Code are automatically attracted. Before passing an order under Section 146 (1), the Magistrate should think or deliberate on and he has to look at the materials before him attentively or carefully and only thereafter an order in terms of Section 146 (1) Criminal Procedure Code can be passed. As already discussed, no such thing has been done in this case and there was no fresh material before him for passing an order under Section 146 Criminal Procedure Code;