D.N.Jha, J. - (1.) THE learned Single Judge, Honourable Mahavir Singh, J. (as he then was) doubted the correctness of the law laid down by this court in Syed Ahmad v. Rasis Ahmad, 1976 AWC 588= 1977 CrLJ 450 and since he was of the view that the scheme of the present Act of the Code is such that proceedings under section 145 (1) CrPC are separate from proceedings under section 146 (1) CrPC unlike the provisions of the old Criminal Procedure Code. THE following questions, therefore, for determination by a larger Bench have been referred :- 1. Whether an order under section 146 (1) CrPC can be passed exparte without notice to the opposite party either along with the order under section 145 (1) CrPC or any time afterwards ? 2. Whether for determining the factum of emergency a Magistrate can rely upon the same materials which led him to pass the preliminary order under section 145 (1) CrPC ? 3. Whether the evidence to be recorded by a Magistrate for this purpose has also to be in accordance with section 273 and 274 (1) CrPC or whether he can call for affidavits for the same ?
(2.) SINCE the learned single Judge has retired we heard this case in order to decide it finally. In order to answer these questions it is necessary to have brief facts of the case. One Rangilal Pradhan mads an application to the Station Incharge of P. S. Hardoi about existence of apprehension of breach of peace between the petitioners (applicants in the case and opposite parties to this petition) in respect of Khata No. 60 consisting of 47 plots. On the basis of this application the Station Officer made an enquiry and submitted his report to the Sub- Divisional Magistrate concerned that there was apprehension of breach of peace in respect of the plots in dispute. The Sub-Divisional Magistrate feeling satisfied from the report of the Station Officer considering it to be a case of emergency attached the plots in dispute. The applicants had filed a revision feeling aggrieved from the order before the Sessions Judge, Bahraich, who dismissed the same vide his order dated 4-4-1978. The petitioners feeling aggrieved by this order preferred this criminal miscellaneous application under section 482 CrPC. We have gone through the record with the assistance of the learned counsel for opposite parties as none appeared for the petitioners. In this petition we are only confining ourselves to the question of law raised before the learned Single Judge and we are avoiding to record any finding with respect to the questions of fact in order to avoid any prejudice being caused to either of the parties since the matter is pending final decision before the Sub-Divisional Magistrate. The order impugned in the petition has been passed on 1-10-1977 by the Extra Magistrate, II, Bahraich. In this order he has observed ;- "Whether it has been made to appear to me from the application/reports of Police Station Hardoi dated 6-10-1976/26-9-77 that a dispute regarding the land described below is between Radhey Shyam and others on one side and Samaideen and others on (the other) it is likely to cause breach of peace." The Magistrate thereafter directed the parties to attend the court on 28-10-1977 at 10 A. M. and put in written statement with respect to their respective claims of possession of land specified in the schedule. Lastly, he has observed ;- "Whereas I consider the case as one of emergency none of the claimants of the land have been able to confirm as to which party is in possession over the land in dispute, I hereby order that the land and crops standing thereon should be attached and given in the supurdgi of an independent person not related to either party." The learned Single Judge in view of the opening words of section 146 (1) CrPC which read as under ;- "If the Magistrate at any time after making the order under sub-section (1) of section 145." was of the view that the order under section 146 (1) CrPC could be passed only after the order under section 145 (1) has been passed. He was further of the view that the basis on which the order under section 145 (1) CrPC can be passed is indicated in section 145 (1) CrPC and there is no such indication in section 146 (1) CrPC. He felt that section 145 (1) CrPC shows how a Magistrate has to be satisfied after the existence of breach of peace and since it has not been specified in section 146 (1) CrPC the order can be passed on the same material on the basis of which the order under section 145 (1) CrPC has been passed. Therefore, the order under section 146 (1) CrPC can be passed only after the material in accordance with the law has been placed before the Court to show it was a case of emergency. This could only be done by adducing evidence as permitted by the Court. Referring to section 274 (1) CrPC which provides the mode for recording of the evidence in a proceeding under sections 145 to 148 CrPC the learned Magistrate since had not recorded evidence in accordance with this provision he could not pass the order under Section 146 (1) as in his view it was no longer permissible under law.
(3.) THE point that was canvassed before the learned Single Judge was that the Magistrate could not on one hand attach the plots and on the other require the parties to produce evidence in support of their respective possession over the plots in dispute. In order to appreciate the law relating to sections 145 and 146 CrPC it may be observed that: these sections of the Criminal Procedure Code constitute a scheme in itself with respect to the situation where there is likelihood of breach of peace because of dispute concerning any land or water or their boundaries. If section 146 CrPC is torn out of its setting and read independently of section 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. In our view section 146 CrPC cannot be separated from section 145 CrPC. THEy have to be read conjunctively. That in our view is the first principle of construction. The first of the situations in which an attachment may be effected under section 146 (1) of 1973 Code has to be "at any time after making the order under sub-section (1) of section 145" while the other two situations have, necessarily, to be at the final stage of the proceedings initiated by the preliminary order. The preliminary order is required to enjoin the parties not only to appear before the Magistrate on a specified date but also to put in their written statements. Sub-section (3) of section 145 CrPC prescribes the mode of service of the preliminary order on the parties. Sub-section (4) casts a duty on the Magistrate to peruse the witten statements of the parties, to receive the evidence adduced by them, to take further evidence if necessary and, if possible, to decide which of the parties was in possession on the date of the preliminary order. If the Magistrate decides; that one of the parties was in possession he is to make a final order in the manner provided by sub-section (6). Provision for the two situations where the Magistrate is unable to decide which of the parties was in possession or where he is of the view that neither of them was in possession is made in section 146 under which he may attach the subject of dispute until the determination of the rights of parties by a competent court. The scheme of Secs. 145 and 146 is that the Magistrate on being satisfied about the existence of a dispute likely to cause a breach of the peace, issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and sumbit their written statements. Then he proceeds to peruse the statements, to receive and to take evidence and to decide which of the parties was in possession on the date of the preliminary order. On the other hand, if he is unable to decide who 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 party. In the; other two situations he attaches the property. The proceedings, therefore, beginning with a preliminary order has to be followed up by an enquiry and end with the Magistrate deciding it as provided in the three sub-sections of section 145 and then making the consequential order. There is in fact no half way house and the proceeding cannot be stopped in the middle and leave the parties to go to the Civil Court. The proceeding may be stopped at any time if either of the parties satisfies the Magistrate that there has never been or there is no longer any dispute likely to cause a breach of peace. In fact once the; dispute likely to result in breach of peace disappears the very foundation for the jurisdiction of the Magistrate also disappears. Sub-section (5) of section 145 CrPC provides for this contingency. Otherwise the Magistrate initiating the proceeding has to end the proceeding one way or the other with respect to possession. In the case of emergency the Magistrate may attach the property at any time after making the preliminary order. This is the first situation provided in section 146 (1) in which an attachment may be effected. Titers is no express stipulation in section 146 that the jurisdiction of the Magistrate ends with the attachment nor can such a view be implied from the language of the section. The obligation to proceed with the enquiry has been provided under sub-section (4) of section 145. The Supreme Court in Mathura Lal v. Bhamarlal, 1980 SCC (Cri) 9 took into consideration the provisions of sections 145 and 146 CrPC as it stood before 1955 and after 1955 and also in the new Criminal Procedure Code of 1973. After comparative assessment the Supreme Court observed as under ;- "It is seen that there were two [principal changes made by the 1955 amendment. The first was that the preliminary order was also to require the parties to put in documents and the affidavit of such persons as they intended to rely upon in support of their claims. The Magistrate was to decide the case on a consideration of the written statements, the documents and the affidavit put in by the parties and after hearing them. The position earlier was that the parties had the right to adduce evidence and the Magistrate could take further evidence iff he so desired. The second change was that in the two situations where he was unable to satisfy himself as to which of the parties was in possession or where he decided that none of the parties was in possession after attacking the property the Magistrate was himself to refer the dispute to the Civil Court instead of leaving it to the parties to go to the Civil Court. He was to obtain the finding of the Civil Court and thereafter conclude the proceeding under section 145 Criminal Procedure Code in conformity with the decision of the Civil Court. The revised procedure introduced by 1955 amendment was not found to work satisfactorily and, therefore, it was apparently, thought desirable to revert to the old procedure. The provisions of Sections 145 and 146 of the 1973 Code are substantially the same as the: corresponding provisions before the 1955 amendment. The only noticeable change is that the second proviso to section 145 (4) (as it stood before the 1955 amendment) has now been transposed to section 146 but without the words "pending his decision under this section" and with the words "at any time after making the order under section 145 (1) superadded." ;