- (1.) THE learned Single Judge has referred this criminal revision to a Division Bench vide his order dated 12. 10. 76 in view of the doubts expressed by him about the correctness of the decision in Umrao vs. Sheonarain (l), Mansukh Ram vs. THE State and Ganesha Ram (2) and Malam Singh vs. State of Rajasthan (3 ).
(2.) IN Umrao's case, this Court held that after attachment of the subject of dispute in a case of emergency under sub-section (1) of sec. 146, Cr. P. C, 1973 (hereinafter referred to as the New Code) a proper enquiry into the question of possession as envisaged by sub-sec. (4) of s. 145 of the New Code is of no use, because even after passing a final order under sub-sec. (6-A) of sec. 145 of the New Code, an attachment has to be continued until deter-mination by a competent Court of the rights of the parties to the subject of dispute with regard to the person entitled to the possession thereof. A similar view was taken in Mansukh Ram's case (supra ). IN Malam Singh's case (supra), the question was as to whether the order of attachment was a final order or only an interlocutory order. So far as the point, as to whether after having once attached the subject of dispute under sub-sec. (l)of S. 146 of the New Code, the Magistrate becomes functus officio and can proceed to enquire into the question of possession or not the learned Judge refused to express any opinion, as, in his opinion, it was not necessary for the disposal of that case. The question, therefore, which needs answer is, as 1o whether in proceedings u/s 145, of the New Code after having once attached the subject of dispute under sub-sec. (1) of S. 146 of the New Code, the Magistrate becomes functus officio and cannot proceed to enquire into the matter of possession under sub-sec. (4) of s. 145 of the New Code? Before the New Code came into force with effect from 1. 4. 1974, the Code of Criminal Procedure, 1898 (hereinafter referred to as the Old Code) was in force. In the Old Code, in proceedings u/s 145, there were separate provisions for attaching the subject of dispute in case of emergency, and in case the Magistrate was of the opinion that none of the parties was in possession on the date of the preliminary order, or was unable to decide as to which of them was then in possession. If the Magistrate considered the case as one of emergency, he could attach the subject of dispute at any time under 3rd proviso to sub sec. (1) of s. 145 of the Old Code, but that attachment was only to enture till the proceedings u/s 145, were disposed of by the Magistrate himself, i. e. , the attachment in that case was only interim attachment pending decision of the proceeding u/s 145 of the Old Code by the Magistrate. When at the final disposal of the case, if the Magistrate was of the opinion that none of the parties was in possession on the date as envisaged in s. 145, or was unable to decide as to which of them was then in such possession of the subject of dispute, he could attach the same under sub-sec. (1) of s. 146 of the Old Code. Under the New Code, the provisions of attachment of the subject of dispute in all the three contingencies, referred to above, have been incorporated in sub-sec. (1) of s. 146 of the New Code. It appears that while taking a view in Umrao's case and Mansukhram's case (supra) that once after having attached the subject of dispute under sub-sec. (1) of s. 146 of the New Code, the Magistrate becomes functus officio and cannot proceed to decide the question of possession, this Court went by the literal interpretation of s. 146 (1) of the New Code. We will like to refer here the following paragraph or Maxwell on Interpretation of Statutes (12th Edn.): - "in determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one "an intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. " In M. Pentiah vs. Muddala-Veeramullappa (4), their Lordships of the Supreme Court have quoted Maxwell on Statutes (10th Edn.) at page 229, which is to the following effect: - "where the language of a statute in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. . . Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Nevertheless, the courts are very reluctent to substitute words in a Statute, or to add words to it, and it has been said that they will only do so where there is a repugnancy to good sence. " It can, therefore, be said that in case the literal construction is not in consonance with the objects, and if the provisions are literally construed, they will lead to ambiguity, inconvenience or absurdity, hardship or injustice, which was not intended by the legislature, then such a construction should be placed which achieves the object of the Act. In enacting part 'd' of Chapter X in the New Code, which deals with "disputes as to immovable property" the purpose the legislature had in view is the prevention of a breach of the peace. Its purpose is only to provide a speedy remedy for the prevention of breach of the peace arising out of disputes relating to immovable property by maintaining one or other of the parties in possession till such time as the parties get their respective rights decided from a competent court. In proceedings u/s 145 of the New Code, a Magistrate only intervenes to prevent a breach of the peace with regard to immovable property and passes a temporary order in regard to its possession, which, as already observed above, has the effect until the actual right of one of the parties has been determined by a competent Civil Court. Therefore, to our mind, if sub-sec. (1) of S. 146 of the New Code is interpreted in such a manner that once attachment of the subject of dispute is made under sub-sec (1) of S. 146 of the New Code, the Magistrate becomes functus officio and cannot proceed to decide the question of possession under sub-sec. (4) of S. 145 of the New Code, then it will be giving the unbriddled powers to the Magistrate to attach the subject of dispute, and then drive away the parties to a competent Court to get their rights decided. To our mind, such an interpretation will defeat the very object for which the provisions in part 'd' of Chapter X of the New Code have been legislated. A look at Sec. 145 of the New Code will show that while making an order under sub-sec (1) of Sec 145, not only the grounds for satisfaction that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof have to be stated, but the parties concerned in such a dispute are also to be required to attend the court of the Magistrate in person or pleader, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. An order made under sub-sec. (1) of Sec. 145 of the New Code is final unless the same is cancelled by the Magistrate on being shown by any of the parties that no such dispute, as envisaged in sub-sec. (1) of S. 145, exists or has existed. We are of the opinion that once an order under sub-sec (1) of Sec 145 of the New Code is made, then the Magistrate is bound to make an enquiry in accordance with sub sec. (4) of s. 145, and decide as to which of the parties was or should under the proviso to sub-sec. (4), be treated as being in such possession as in mentioned in sub-s. (i) of s. 145, and merely because an order under sub-s. (1) of s 146 of the New Code attaching the subject of dispute is made, which can only be made any time after making on order under sub-s (1) of s 145 of the New Code, the Magistrate does not become functus officio and must proceed to decide under sub-s. (4) of s. 145 of the New Code as to which of the parties on the date of the order made by him under sub-s. (1) of s 145, was in possession of the subject of dispute, or if the case falls under the proviso to sub-s. (4) of s. 145, then should be treated as being in possession of the subject of dispute. Once the matter of possession is finally decided by the Magistrate, then the emergency no longer exists and the attachment order made u/s 146 (1) of the New Code will be recalled and set aside. We say with respect that the view taken in Umrao's case and Man Sukh Ram's case (supra) does not lay down the correct law. We may refer here to Mahetra Mohan Sarkar vs. Paran Chandra Mandal (5), Gaya Singh vs. Doman Singh (6) and to Chandu Naik vs. Sitaram D. Naik (7 ). We may also observe that the controversy now can be said to be settled in view of their Lordships of the Supreme Court's observations in Chandu Naik's case (supra), and notwithstanding the fact that an order attaching the subject of dispute under sub-sec. (1) of sec. 146 of the New Code on the ground that the Magistrate considered the case to be one of emergency is passed, the Magistrate must proceed under sub-sec. (4) of sec. 145 of the New Code to decide whether any and which of the parties at the date of the order made by him under sub-s. (1) of s. 145, in possession of the subject of dispute, or should the case fall under proviso to sub-s (4), then which of the parties should be treated as being in possession of the subject of dispute. It will be useful to reproduce the observations of their Lordships of the Supreme Court in Chandu Naik's case (supra): - "we, therefore, hold that the proceeding in question in this case did not abate and it has to be disposed of by the Magistrate in accordance with the provisions of law contained in Secs 145 and 146 of the Code. For the guidence of the Magistrate, we think it expedient in the interest of justice to indicate briefly as to how the Magistrate is to proceed for disposing of the proceeding. The Magistrate in the first instance will try to conclude the proceeding in accordance with the various provisions of s. 145 of the Code. If he is able to declare the possession of either party on consideration of the evidence adduced or to be adduced before him he would do so. In that event the other party will be forbidden from creating any disturbance of the possession (including the deemed possession, in case the application of the proviso to sub-s. (4) is found necessary ) of the party declared in possession The Magistrate, then, will have to withdraw the attachment in accordance with the proviso to sub-s. (1) of s 146, because, as per his order declaring a party in poseession there would be no longer any likelihood of the breach of the peace with regard to the subject of dispute. The party not found in possession by the Magistrate will have to seek the redress of his grievance, if any, elsewhere. If, however, the Magistrate decides that none of the parties was in possession of the disputed property on the date of the order made under sub-s. (1) of s. 145 or if he is unable to satisfy himself as to which of them was then in possession of the subject of dispute he need not lift the attachment until a Competent Court had determined the rights of the parties as provided for in s. 146 (1 ). In such a situation recourse, if necessary, may be taken to sub s. (2) of s. 146 of the Code either by the Magistrate or a Civil Court, as the case may be. " The learned Sessions Judge has dismissed the revision holding that the order of attachment was only an interlocutory order, but we are of the opinion that the order of attachment under sub-s. (1) of sec. 146 of the New Code is a final order and not an interlocutory order, and we agree with the view taken in this respect in the aforesaid cases of Umrao, Mansukhram and Malamsingh. In the result we dismiss this revision petition, uphold the order of the learned Sessions Judge that the Magistrate shall proceed to enquire under sub-s. (4) of s. 145 of the New Code about the question of possession, but at the same time set aside the order of the learned Sessions Judge that the revision before him was not maintainable, as it was an order of attachment under sub-s. (1) of s. 146 of the New Code, which, in his opinion, was an interlocutory order. We hold that the revision was maintainable before the learned Sessions Judge.
(3.) WE now direct the learned Magistrate to proceed in accordance with law to decide the question of possession in terms of s. 145 (4) of the New Code of the subject of dispute. .;