M.M. Punchhi, J. - (1.) THE question which calls for determination in this composite petition under Sections 482 and 401 of the Code of Criminal Procedure, 1973 (hereinafter called the Code) is whether an Executive Magistrate who has put property under attachment under Section 146 of the Code, can lift attachment and release possession in favour of the party whom he finds under Section 145(4) to be in possession thereof on the date of the preliminary order under Section 145(1) of the Code.
(2.) FACTS of the case, when summarised, disclose that a parcel of agricultural land measuring 26 Kanals 8 Marias situated at village Manas, tahsil Kaithal, district Kurukshetra, became the bone of contention between Puran and others known as the first party and Kapoora and others known as the second party. The Station House Officer, Police Station Sadar Kaithal, reported on 17th April, 1978 that there was a dispute regarding possession over the said land between the two parties which was likely to lead to breach of peace especially when crops standing thereon were ripe for harvest. The police also requested that till the possession of either party was decided, the land and the standing crops be put under attachment. This report known as Kalandra is Annexure P 1 to the petition. On that report, the Sub -Divisional Magistrate, Kaithal assumed jurisdiction and initiated proceedings under Section 145 of the Code by passing a preliminary order, dated 27th April, 1973 (Annexure P. 2). Agreeing with the police Kalandra, he considered it essential to attach the land and the standing crop of wheat thereon, without specifically sanctioning it to be a case of emergency, and made it over to the Tahsildar, Kaithal as receiver till final decision of the complaint. Consequential order (Annexure P. 3) was communicated to the Station House Officer to effect the attachment till the decree or order of a competent Court determines the right of the parties and hand it over in the possession of the Tahsildar, Kaithal, who was the receiver. On issuance of notice to the parties, they put in their respective written statements and each party put in respective claim that it was in actual possession of the subject of dispute. The Sub -Divisional Magistrate then conducted inquiry under Sub -section (4) of Section 146 of the Code and came to the conclusion that the second party, that is Kapura and others, were in physical possession of the disputed land on the day when preliminary order under Section 145 of the Code was passed. That order is dated 31st July, 1978, which does not bear any annexure but may be termed as Annexure P. 4. All these orders have been challenged in this petition. The learned Counsel for the Petitioner attacked orders, Annexures P. 1 to P. 3, on the grounds that the preliminary order under Section 145 of the Code was bereft of the grounds of the Sub -Divisional Magistrate being satisfied that there was a dispute over land likely to cause breach of peace (Annexure P. 2) and that the attachment order was violative of the provisions of Section 146 of the Code since the Sub -Divisional Magistrate had expressed his inability to satisfy himself as to which of the two parties was in actual possession at the preliminary stage without going into evidence (Annexure P. 3). It was also challenged that neither in Annexure P. 2 nor in Annexure P. 3 did he specify that the case was of an emergent nature requiring the land and the crops to be attached. Additionally, it was contended that vide Annexure P. 3, the possession had been made over to the receiver for his holding it till the matter was decided by a decree or order of a competent Court, meaning thereby a civil Court, and yet in the final order he had ordered passing over of the possession to the second party. Now, it is too late in the day for the Petitioner to have questioned either the preliminary order or the consequential attachment order (which is in modified terms of Form 26) after having participated in the proceedings and suffered the final order (Annexure P. 4). The Petitioner sat on the fence on the expectancy that the ultimate decision would go in their favour. Any suggested error or irregularity in the preliminary or the attachment order cannot be corrected, reversed or altered when the final order has been passed unless it can be shown to the Court that a failure of justice has in fact been occasioned thereby. That is the mandate of Section 465 of the Code. The Court is required to have regard to the fact that whether the objection could and should have been raised at an earlier stage of the proceedings. The Petitioner had ample opportunity to question the legality and propriety of orders contained in Annexures P. 2 and P. 3 at the initial stages of the proceedings. Having suffered the final order, it cannot be said that there has occasioned a failure of justice by any suggested error or irregularity in the impugned orders. The next challenge of the learned Counsel was to the final order, Annexure P. 4. It was contended that when the Sub -Divisional Magistrate had attached the property in dispute, he had no jurisdiction to undertake an inquiry under Sub -section (4) of Section 145 of the Code and he was required to restrain his hands to let the Civil Court decide the question of possession. It was further contended that even if he had undertaken an inquiry and come to the finding, he could not order delivery of possession of the disputed land to the second party having ordered, - -vide Annexures P. 2 and P. 3, the receiver to hold the property till the decree or order of a Court of competent jurisdiction. This argument was based on the provisions of Section 146 of the Code which may be reproduced herein: 146. (1) If the Magistrate at any time after making the order under Sub -section (1) of Section 245 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, 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: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. 2. When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908: Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate - - (a)shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him; (b)may make such other incidental or consequential orders as may be just. Reliance was placed on Md. Muslehuddin and Anr. v. Md. Salahuddin : 1976 Cri. L.J. 1150. Dandapani Pala and Ors. v. Madan Mohan Pala and Ors. : 1976 Cri. L.J. 2014, Bisweswar Pattnaik v. Rahas Bihari Naik, 1977 Cri. L.J. (NOC) 232 (Orissa). Hari Choudhary and Ors. v. Ram Lakhan Tiwari and Anr., 1977 Cri. L.J. (NOC) 254 (Patna) and Mansukh Ram v. The State and Anr. : 1977 Cri. L.J. 563. to contend that the Magistrate after attachment had no jurisdiction to proceed further in the matter. The aforesaid decisions are of various High Courts but none of them is of this Court.
(3.) IN Mansukh Ram's case (supra) which is the latest in time, Kalyan Dutta, J. of the Rajasthan High Court observed as under: Proceedings under Section 145(1), Code of Criminal Procedure come to an end after an order of attachment is made under Section 146(1) on the ground of emergency. After the attachment of the subject of dispute a proper inquiry into the question of possession as contemplated by Sub -section (4) of Section 145, new Code of Criminal Procedure is of no use because the attachment will subsist even after the final order which may ultimately be passed after such inquiry into the question of possession and the Sub -Divisional Magistrate will have no power to restore the successful party to possession. The Sub -Divisional Magistrate after having once attached the subject of dispute on the ground of emergency is, therefore, not empowered to proceed further under Section 145, new Code of Criminal Procedure except for the purpose of ascertaining whether there is any dispute or whether there is no longer any likelihood of breach of the peace with regard to the subject of dispute, because, in that case he can withdraw the attachment at any time. In Dandapani Pala's case (supra), a Division Bench of the Orissa High Court observed as follows: Section 146 contemplates three contingencies in which attachment of the property may be ordered. The Parliament has equated the first contingency, namely, after passing of the preliminary order if the Magistrate is satisfied that it is a case of emergency, at par with the other two contingencies which can arise only after completion of the inquiry. The proceeding under Section 145 terminates. The dispute before the Criminal Court comes to an end and which party is entitled to possession has to be determined by the competent Court. In Md. Muslehuddin's case (supra), a Single Bench of the Patna High Court observed as follows: The Magistrate can withdraw attachment under proviso to Section 146(1) only when he is satisfied that there is no longer any likelihood of breach of the peace in regard to the subject of dispute. In such a case the Section 145 proceedings itself will have to be dropped and no question of deciding as to which of the parties was in possession at the relevant time would arise. The property after attachment becomes custodia lenis and, therefore, provision has been made in the Code, to make such arrangement as is necessary and proper for looking after the property or to appoint a receiver thereof. If the Magistrate could legally attach the property under Section 146, he could not legally proceed under Section 146 to decide the question of possession. In Hari Choudhary's case (supra), a head note from a judgment of a Single Judge of the Patna High Court reads as under: Criminal Procedure Code (1974), Sections 146(1) and 145(4) - -Scope - -Attachment on ground of emergency. Magistrate has to stay the proceeding and is not competent to hold enquiry under Section 145(4) as to who is in actual possession of property - -Magistrate has to await the decision of Competent Civil Court. In Bisweswar Pattnaik's case (supra), a head note prepared from the judgment of a Single Judge of the Orissa High Court reads as under: Criminal Procedure Code (1974), Section 146(1) - -Attachment of property by Magistrate - -Magistrate not empowered further to decide as to which party was in possession and to vacate the attachment - -Parties to seek remedy in Civil Court.;