Criminal Appeal No 10 of 1979
Appeal by Special Leave from the Judgment and Order dated 12 10 1978 of the Madhya Pradesh High Court in Criminal Revision No 336 of 1978
622 D N Mukherjee and N R Choudhary for the Appellant
Dalveer Bhandari for Respondent No 1
The Judgment of the Court was delivered by CHINNAPPA REDDY J
On the report of the Station House Officer Manak Chowk Ratlam that there was a dispute between Mathuralal and Bhanwarlal concerning a house situated in Kambalpatti Ghas Bazar Ratlam which was likely to cause a breach of the peace the Sub Divisional Magistrate Ratlam passed a preliminary order under Section 1451 of the Code of Criminal Procedure 1973 on Ist March 1978
On 2nd March 1978 the learned Magistrate attached the subject of dispute under Section 1461 Criminal Procedure Code considering the case to be one of emergency
Thereafter when the learned Magistrate wanted to proceed with the enquiry under Section 145 Criminal Procedure Code an objection was raised by Mathuralal that such an enquiry was incompetent once the subject of the dispute had been attached under Section 146 Criminal Procedure Code
The objection was overruled by the learned Magistrate
Successive Revisions taken before the Sessions Judge and the High Court having borne no fruit Mathuralal has filed the present appeal by special leave of this Court
The High Court we may mention here thought that the matter was concluded against the appellant by the decision of this Court in Chandu Naik  Ors
vs Sitaram B Naik  Anr1 Shri Mukherji learned counsel for the appellant urged that under Section 146 of the Criminal Procedure Code of 1973 an attachment of the subject of dispute could be effected in three situations i if the Magistrate at any time after making the order under Section 1451 considered the case to be one of emergency or ii if he decided that none of the parties was then in such possession as was referred to in Section 145 or iii if he was unable to satisfy himself as to which of them was then in such possession of the subject of dispute
The attachment so effected regardless of the situation consequent upon which it was effected was to subsist until a competent Court determined the rights of the parties with regard to the person entitled to possession
This he urged clearly indicated that after an attachment was effected it was the Civil Court and not the Magistrate that was to have further jurisdiction in the matter
He contrasted the provisions of Section 1461 of the present code with the provisions of Section 1461 and the third proviso to Section 1454 of the Criminal Procedure Code of 1898 as amended by Act 26 of 1955
He drew our 623 attention to the circumstance that the third proviso to Section 1454 of the old Code empowered the Magistrate if he considered the case one of emergency to attach the subject of dispute pending his decision under that Section while Section 1461 of the previous Code empowered the Magistrate to attach the subject of dispute if the Magistrate was of the opinion that none of the parties was then in possession or if the Magistrate was unable to decide as to which of them was in such possession and thereafter to refer to the Civil Court for decision the question whether any and which of the parties was in possession of the subject of dispute
Therefore he said under the previous Code in the case of attachment because of emergency the Magistrate was himself competent to decide the question of possession and in the other two cases he was to refer the dispute to the Civil Court whereas under the present Code in all the three situations the Magistrate was to leave the matter for adjudication by the Civil Court
Thus the submission of Shri Mukherji was that while under the previous Code it was permissible to attach the subject of dispute pending enquiry by the Magistrate as contemplated by Section 145 such attachment pending decision by the Magistrate was not permissible under the provisions of the present Code
According to him so soon as the Magistrate effected an attachment he had nothing further to do except await the decision or the directions of the Civil Court
Though at first blush there appeared to be force in the submissions of Shri Mukherji a closer scrutiny of the provisions of Sections 145 and 146 exposes their unsoundness
It may perhaps be desirable at this stage to extract the provisions of Sections 145 and 146 to the extent that they are relevant in the Code of 1898 before it was amended in 1955 in the Code of 1898 after it was amended in 1955 and in the Code of 1973 624 a 145 1 Whenever a District Magistrate Sub divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader within time to be fixed by such Magistrate and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute
2  3 A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct and at least one copy shall be b 145 1 Whenever a District Magistrate Sub divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend Court in person or by pleader within a time to be fixed by such Magistrate and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents or to adduce by putting in affidavits the evidence of such persons as they rely upon in support of such claims
2  3 A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct and at least one copy shall be c 145 1 Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within his local jurisdiction he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute
2  3 A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct and at least one copy shall be 625 published by being affixed to some conspicuous place at or near the subject of dispute
4 The Magistrate shall then without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute peruse the statements so put in hear the parties receive all such evidence as may be produced by them respectively consider the effect of such evidence take such further evidence if any as he thinks necessary and if possible decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject Provided that 
Provided also that if the Magistrate considers the case one of emergency he may at any time attach the subject of dispute pending his decision under this section
5 Nothing in this section shall preclude any party so required to attend or any other person interested from showing that no such dispute as aforesaid exists published by being affixed to some conspicuous place at or near the subject of dispute
4 The Magistrate shall then without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute peruse the statements documents and affidavits if any so put in hear the parties and conclude the inquiry as far as may be practicable within a period of two months from the date of the appearance of the parties before him and if possible decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject Provided that 
Provided further that 
Provided also that if the Magistrate considers the case one of emergency he may at any time attach the subject of dispute pending his decision under this section
5 Nothing in this section shall preclude any party so required to attend or any other person interested from showing that no such dispute as aforesaid exists published by being affixed to some conspicuous place at or near the subject of dispute
4 The Magistrate shall then without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute peruse the statements so put in hear the parties receive all such evidence as may be produced by them take such further evidence if any as he thinks necessary and if possible decide whether any and which of the parties was at the date of the order made by him under sub section 1 in possession of the subject of dispute Provided that  5 Nothing in this section shall preclude any party so required to attend or any other person interested from showing that no such dispute as aforesaid exists 626 a or has existed and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed but subject to such cancellation the order of the Magistrate under sub section 1 shall be final
6 If the Magistrate decides that one of the parties was or should under the first proviso to sub section 4 be treated as being in such possession of the said subject he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to sub section 4 may restore to possession the party forcibly and wrongfully dispossessed
7  8  9  10  146 1 If the Magistrate descides that none of the parties was then in such possession or is unable to satisfy himself b or has existed and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed but subject to such cancellation the order of the Magistrate under sub section 1 shall be final
6 If the Magistrate decides that one of the parties was or should under the 2nd proviso to sub section 4 be treated as being in such possession of the said subject he shall issue an order declaring such party to be entitled to possession thereof until elected therefrom in due course of law and forbidding all disturbance of such possession until such eviction and when he proceeds under the second proviso to sub section 4 may restore to possession the party forcibly and wrongfully dispossessed
7  8  9  10  146 1 If the Magistrate is of opinion that none of the parties was then in such possession of the subject of dispute he c or has existed and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed but subject to such cancellation the order of the Magistrate under sub section 1 shall be final
6 a If the Magistrate decides that one of the parties was or should under the proviso to sub section 4 be treated as being in such possession of the said subject he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to sub section 4 may restore to possession the party forcibly and wrongfully dispossessed
b  7  8  9  10  146 1 If the Magistrate at any time after making the order under sub section 1 of Section 145 considers the case to be 627 as to which of them was then in such possession of the subject of dispute he may attach it until a competent Court has determined the rights of the parties thereto or the person entitled to possession thereof Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute
2 When the Magistrate attaches the subject of dispute he may if he thinks fit and if no receiver of the property the subject of dispute has been appointed by any Civil Court appoint a receiver thereof may attach it and draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in sub section 4 of section 145 and he shall direct the parties to appear before the Civil Court on a date to be fixed by him Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute
1A  1B  1C  1D  1E  2 When the Magistrate attaches the subject of dispute he may if he thinks fit and if no receiver of the property the subject of dispute has been appointed by any Civil Court appoint a receiver thereof 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 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 628 a who subject to the control of the Magistrate shall have all the powers of a receiver appointed under the Code of Civil Procedure
Provided that in the event of a receiver of the property the subject of dispute being subsequently appointed by any Civil Court possession shall be made over to him by the receiver appointed by the Magistrate who shall thereupon be discharge
b who subject to the control of the Magistrate shall have all the powers of a receiver appointed under the Code of Civil Procedure
Provided that in the event of a receiver of the property the subject of dispute being subsequently appointed by any Civil Court possession shall be made over to him by the receiver appointed by the Magistrate who shall thereupon be discharge
c 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 5 of 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
629 Quite obviously Sections 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries
If Section 146 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
But Section 146 cannot be so separated from Section 145
It can only be read in the context of Section 145
Contextual construction must surely prevail over isolationist construction
Otherwise it may mislead
That is one of the first principles of construction
Let us therefore look at Section 145 and consider Section 146 in that context
Section 145 contemplates first the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists concerning any land or water or their boundaries and next the issuance of an order known to lawyers practising in the Criminal Courts as a preliminary order stating the grounds of his satisfaction and requiring the parties concerned to attend his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute
A preliminary order is considered so basic to a proceeding under Section 145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings
It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Sections 145 and 146
In fact the first of the situations in which an attachment may be effected under Section 146 of the 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 proceeding initiated by the preliminary order
Now 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 prescribes the mode of service of the preliminary order on the parties
Sub section 4 casts a duty on the Magistrate to peruse the written 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 146 630 under which he may attach the subject of dispute until the determination of the rights of parties by a competent Court
The scheme of Sections 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 submit 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 or if he is of the view that none of the parties 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
Thus a proceeding begun with a preliminary order must be followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders
There is no half way house there is no question of stopping in the middle and leaving the parties to go to the Civil Court
Proceeding may however be stopped at any time if one or other of the parties satisfies the magistrate that there has never been or there is no longer any dispute likely to cause a breach of the peace
If there is no dispute likely to cause a breach of the peace the foundation for the jurisdiction of the magistrate disappears
The magistrate then cancels the preliminary order
This is provided by Section 145 sub section 5
Except for the reason that there is no dispute likely to cause a breach of the peace and as provided by Section 1455 a proceeding initiated by a preliminary order under Section 1451 must run its full course
Now in a case of emergency a magistrate may attach the property at any time after making the preliminary order
This is the first of the situations provided in Section 1461 in which an attachment may be effected
There is no express stipulation in Section 146 that the jurisdiction of the magistrate ends with the attachment
Nor is it implied
Far from it
The obligation to proceed with the enquiry as prescribed by Section 145 sub section 4 is against any such implication
Suppose a magistrate draws up a preliminary order under section 1451 and immediately follows it up with an attachment under Section 1461 the whole exercise of stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements becomes futile if he is to have no further jurisdiction in the matter
And yet he cannot make an order of attachment under Section 1461 on the ground of emergency without first making a preliminary order in the manner prescribed by Section 1451
There is no reason why we should adopt a construction which will lead to 631 such inevitable contradictions
We mentioned a little earlier that the only provision for stopping the proceeding and cancelling the preliminary order is to be found in Section 1455 and it can only be on the ground that there is no longer any dispute likely to cause a breach of the peace
An emergency is the basis of attachment under the first limb of Section 1461 and if there is an emergency no one can say that there is no dispute likely to cause a breach of the peace
Let us examine if a comparative study of the provisions as they stood before 1955 and after 1955 under the old Code and as they now stand under the 1973 Code lead us to a conclusion other than that indicated in the preceding paragraph
From the comparative table of the provisions 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 affidavits 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 affidavits 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 if 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 attaching 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 the 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 1454 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 1451 super added
The change clearly is in the interests of convenient draftsmanship
All situations in which an attachment may be made are now mentioned together in Section 146
The words pending his decision under this section have apparently been omitted as unnecessary since Section 145 provides how the proceeding initiated by a preliminary order must pro 632 ceed and end and therefore an attachment made at any time after making under Section 1451  can only continue until the termination of the proceeding
At the termination of the proceeding if he finds one of the parties was in possession as stipulated the magistrate must make an order as provided in Section 1456 and withdraw the attachment as provided in Section 1461 since there can be no dispute likely to cause a breach of the peace once an order in terms of Section 1456 is made
In our view it is wrong to hold that the magistrate s Jurisdiction ends as soon as an attachment is made on the ground of emergency
A large number of cases decided by several High Courts some taking one view and the other a different view were read to us
We do not consider it necessary to refer to them except to acknowledge that we derived considerable assistance from the judgment of Lahiri J in Kshetra Mohan Sarkar vs Paran Chandra Mandal1 in arriving at our conclusion
We may also add that the question now at issue did not arise for consideration in Chandu Naik  Ors
vs Sitaram B Naik  Anr
supra
What was decided there was that a proceeding under Section 145 Criminal Procedure Code did not abate because of Section 8 of the Maharashtra Vacant Land Prohibition of unauthorised Occupation and Summary Eviction Act 1975
In the result the appeal is dismissed
PBR Appeal dismissed


Summary:
Apprehending breach of peace on account of a dispute over a house between the appellant and the respondent the Sub Divisional Magistrate passed a preliminary order under section 1451 CrPC 1973 and later attached the subject matter of dispute under section 1461 on the ground that it was a case of emergency
The appellant s objection that once the subject of the dispute had been attached under section 146 he was not competent to proceed with the enquiry under section 145 was overruled by the Magistrate
Having failed in his revision petitions before the Sessions Judge and the High Court the appellant preferred an appeal to this Court
It was contended on behalf of the appellant that while under the previous Code it was permissible to attach the subject of dispute pending enquiry by the Magistrate as contemplated by section 145 such attachment pending decision by the Magistrate was not permissible under the present Code and that once the Magistrate effected an attachment he had nothing further to do except await the decision or the direction of the civil court
Dismissing the appeal  HELD It is wrong to say that the Magistrate s jurisdiction ends as soon as an attachment is made on the ground of emergency
632 C 1
a Sections 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries
If section 146 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
But section 146 cannot be so separated from section 145
It can only be read in the context of section 145
Contextual construction must prevail over isolationist construction
That is one of the first principles of construction
629 A C b On being satisfied about the existence of a dispute likely to cause a breach of peace the Magistrate issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statement
On perusal of the written statements he would proceed to record evidence to decide which of the parties was in possession on the date of the preliminary order
If he decides that one of the parties was in possession he declares possession of such party
If on the other 621 hand he is unable to decide who was in possession or if he is of opinion that none of the parties 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 property
In the other two situations he attaches the property
Thus a proceeding begun with a preliminary order must be followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders
630 A D c The Magistrate may however stop the proceedings at any time if one or the other of the parties satisfies him that there has never been or that there is no longer any dispute likely to cause a breach of the peace
The Magistrate then cancels the preliminary order vide section 1455 except in this event a proceeding initiated by a preliminary order under section 1451 must run its full course
630 E d One of the situations provided under section 1461 is that in a case of emergency a Magistrate may attach the property at any time after making the preliminary order
There is no express stipulation in section 146 that the jurisdiction of the Magistrate ends with the attachment
Nor is it implied
The obligation to proceed with the enquiry as prescribed by section 1454 is against any such implication
630 G 2
The position under the section before its amendment in 1955 was that the parties that the right to adduce evidence and the Magistrate could take further evidence if he so desired
There were two principal changes in the section as a result of the amendment in 1955 1 the preliminary order was also to require the parties to put in documents and affidavits 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 affidavits put in by the parties and after hearing them come to a conclusion
2 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 attaching 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 a finding of the civil court and thereafter conclude the proceeding under section 145 in conformity with the decision of the civil court
The revised procedure having been found to be unsatisfactory sections 145 and 146 were again amended so as to revert to the position obtaining before the 1955 amendment
In the present section 146 all situations in which an attachment may be made are now mentioned together
631 D F Chandu Naik  Ors
vs Sitaram B Naik  Anr  Crl
L J 356 distinguished
Kshetra Mohan Sarkar vs Puran Chandra Mandal 1978 Crl
LJ 936 approved