V. S. DAVE, J. - (1.) THIS is a reference made to us by Hon'ble Chief Justice for answering the question referred to Division Bench by the learned Single Judge, Hon'ble Sharma J. The question referred to is whether a composite order of attachment of disputed property under section 146 Cr. P. C can be passed by the Magistrate while passing the preliminary order under section 145 (1) Cr. P. C?
(2.) THE aforesaid question arose in a revision petition filed against the order passed by Sessions Judge, Jhunjhunu, whereby he had partly quashed the order of Sub - Divisional Magistrate, Jhunjhunu, dated December 20, 1982 so far as the attachment of the property and appointment of receiver was made. THE learned Sub Divisional Magistrate had passed one composite order which was in two parts. In first part he had drawn a preliminary order as required by sec. 145 (1) Cr. P. C. and in the second part he had passed an order of attachment and appointed a receiver to manage the property. THE learned Sessions Judge while reversing the order of the Sub-Divisional Magistrate to the extent of it being one under section 146 (1) Cr. P. C. placed reliance on a decision of this court reported in Kishan Bihari Birla vs. Prem Kumari Bhati (1 ). A revision was filed before this Court which come up for hearing before Hon'ble Sharma J. His attention was drawn to the decision of Hon'ble Byas J. in Ram Prasad V. State of Rajasthan (2) and of Hon'ble Kasliwal J. in Girwar Dan Ram Prasad (3) Hon'ble Sharma J. had, already, in an earlier case cited above taken the view that a composite order under section 145 (1) and 146 (1) Cr. P. C. is illegal and it was this judgment which was relied on by Sessions Judge. Since Hon'ble Byas J. had taken the view that simultaneous order of attachment can be passed and there is no illegality in it so as to call for interference in revision petition and Hon'ble Kasliwal J. had taken the view that a composite order may validly be passed though it is appropriate if the Magistrate passes two separate orders and also that order under section 145 (1) Cr. P. C. must precede order under Sec. 146 (1) Cr. P. C. and further it must be clearly borne out from composite order that Magistrate was satisfied separately with regard to existence of conditions for drawing orders under two sections, therefore, Hon'ble Sharma J. in the instant case made a reference to the Larger Bench. This is how this reference has come up before us for answering. Learned counsel for the petitioner Shri Jagdeep Dhankhar, while supporting the view taken by Hon'ble Byas J. and Hon'ble Kasliwal J. submitted that there is no bar in passing simultaneous or composite order and the only requirement of law is that Magistrate should apply his mind twice and it should be apparent from the order. He placed reliance on the decision of Allahabad High Court in Syed Ahmed V. Rais Ahmed (4 ). He also placed reliance on Theophil Xess Vs. Chuyan Ekka, (5) a judgment from the Orissa High Court. He also placed reliance on the observations of their Lordships of the Supreme Court in Mathuralal V. Bhanwarlal (6 ). On the strength of the aforesaid observations of their Lordships of the Supreme Court he submitted that there being no substantial change even after separately enacting section 146 (1) Cr. P. C. the position of law remains the same and there is no legal bar if the Magistrate passes a composite order. Shri M. M. Ranjan appearing on behalf of the non-petitioner submitted that the view taken by Hon'ble Sharma J. is a correct view and further that the words 'at any time after making the order under sub-section (1) of section 145 Cr. P. C ' will become redundant in case any other interpretation is given. He placed reliance on a decision of the Patna High Court reported in Mahendra Tiwari V. Mt. Lal Pari Devi (7 ). He also relied on Kottarathil Mavunni Vs. State of Kerala (8) wherein Kerala High Court relied on one of its own earlier judgment in Lilly Franklin V. Wilson (9) delivered by Janki Amma J It is thus submitted by Shri Ranjan that order passed under section 145 Cr. P. C. should be separately signed and it is only thereafter that the Magistrate should apply his mind for the second time and pass a separate order under sec. 145 (1) Cr. P. C. If he has not signed the earlier order, it is submitted, then the order cannot be said to be an order in eye of law and the Magistrate has no jurisdiction to pass an order under sec. 146 (1) Cr. P. C. The words 'at any time after making the order' have no ambiguity and it is submitted that on a plain reading also intention of the Legislature is apparant that two orders should be separately passed. We have given our thoughtful consideration to the rival contentions and have carefully perused the decisions cited before us.
(3.) SECTIONS 146 (1) Cr. P. C reads as under: "sec. 146 (l)-If the Magistrate at any time after making the order under sub-sec. (1) of Sec. 145 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. " This provision had been newly added in the Code of Criminal Procedure, 1973 and in fact is a corollary to sec. 145 Cr. P. C. It is section 145 (1)Cr. P. C. wherefrom the Magistrate gets the jurisdiction to proceed with the case i. e. drawing of a preliminary order is the basis of proceedings wherein a dispute likely to cause a breach of peace arises and it is this assumption of jurisdiction which further empowers the Magistrate under section 146 (1) Cr. P. C to pass an order regarding attachment of the property and appointment of receiver. If there is no dispute concerning the immovable property, there would be no jurisdiction in Magistrate to proceed under sections 145 & 146 Cr. P. C. The legality of order under s. 146 (1) Cr. P. C. depends on its having been preceded by lawful proceeding under section 145 (1) Cr. P. C. and therefore, it can be said that section 146 Cr. P. C. is in continuation of section 145 Cr. P. C. and passing a preliminary order under section 145 (1) Cr. P. C. is prior in point of time to an order under section 146 (1) Cr. P. C To this extent there is no controversy in either of the decisions cited by learned counsel for both the parties. The only dispute raised and which has been referred is whether a composite order can be passed. Hon'ble Sharma J. while taking the view that a composite order under sec. 145 (1) and 146 (1) Cr. P. C. is without jurisdiction and against the spirit of section 146 (1) Cr. P. C. placed reliance on the decision in Kottarathil Mavunni's case (supra ). Kerala High Court observed as under: "a composite order under sub-sec. (1) of sec. 145 and under sub-sec. (1) of sec. 146 cannot be passed as an order of attachment under sub-sec. (1) of Sec. 146 can be passed only alter the preliminary order under sub-sec. (1) of Sec. 145 had already been passed by the Magistrate. Where the Magistrate made a preliminary order under Sec. 145 and stated that he was satisfied that there were sufficient grounds for taking proceedings as there exists serious likelihood of breach of peace concerning the disputed property and further by the later part of the decree he placed the disputed property under attachment under Sec. 146 (1), his order regarding later part would be without jurisdiction. " Justice Menon while taking the above view relied on the observations of Janki Amma J. in Lilly Franklin's case wherein it was observed as under: "the learned Additional Sessions Judge has held that in the instant case, the order of attachment does not conform to the requirements of Sec. 146 (1) of the Code of Criminal Procedure. The conclusion seems to be well-founded. The order of the Magistrate extracted above shows that it is a composite order initiating proceedings under Sec. 145 (1) and at the same time attaching the subject of dispute on the ground that there is an emergency. In other words, the initiation of proceedings under S. 145 (1) and the attachment of property are seen effected by the same order. This is not warranted by the provisions of Sec. 146 (1 ). Sec. 146 (1) begins with the words: "if the Magistrate at any time after making the order in sub-sec. (1) of Sec. 145. . . . . . . . " The expression "after making the order" makes it clear that proceedings under Sec. 145 (1; should precede the order attaching the property, sec. 146 (1) does not contemplate a simultaneous exercize of jurisdiction under Sec. 145 (l)and S. 146 (1 ). The order under S. 145 (1) becomes complete only when the Magistrate puts his signature therein. It is only thereafter that he is expected to consider whether it is a case of emergency requiring attachment of property. Since the order attaching property in the instant case did not satisfy the above requirements. It was rightly set aside by the Additional Sessions Judge. Now that the preliminary order under Sec. 145 (l)has been confirmed by the Additional Sessions Judge it is open to the Magistrate to consider whether a case of emergency exists and whether the property should be attached and if he is so satisfied it is up to him to issue fresh order of attachment followed by appointment of receiver. " ;