N.A. Shameel and Abdul Shukoor v. Muhammed Ansari, Sub Divisional Magistrate, Kottayam & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID TUESDAY, THE 26TH DAY OF AUGUST 2014/4TH BHADRA, 1936 Crl.Rev.Pet.No. 152 of 2014 ------------------------------- (AGAINST THE ORDER IN E 4045/2013 of SUB DVL.MAGISTRATE, KOTTAYAM DATED 17.1.2014) ## REVISION PETITIONERS/B PARTY: ------------------------------------------------------------ 1. N.A. SHAMEEL, AGED 38 YEARS, S/O P.A. ABDUL RASHEED RESIDING AT VAZHAKKALAYIL HOUSE, KANJIRAM P.O KOTTAYAM DISTRICT PIN-686020 2. ABDUL SHUKOOR, AGED 40 YEARS S/O SAHUL MAJEED RESIDING AT PUTHENCHIRAMATTAHIL HOUSE CHENGALAM SOUTH P.O, KOTTAYAM DISTRICT PIN-686022 BY ADV. SRI.R.SURENDRAN RESPONDENTS/ A PARTY & STATE: -------------------------------------------------- ## 1. MUHAMMED ANSARI S/O HASHIM HAJI, SECRETARY, ADHOC COMMITTEE NADVATHUL MUJAHIDHEEN, KOTTAYAM SAKHA RESIDING AT JEWEL HOMES B3, MUTTAMBALAM KOTTAYAM 686001 2. THE SUB DIVISIONAL MAGISTRATE, KOTTAYAM 686001 3. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, KOCHI 682031 R1 BY ADV. SRI.M.P.MOHAMMED ASLAM BY PUBLIC PROSECUTOR SRI.R.GITHESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **'C.R'** ## **P.UBAID, J. ~~~~~~~~~~ Crl. R.P No.152 of 2014 ~~~~~~~~~~~ Dated this the 26[th] August, 2014** ## **O R D E R** The question of law involved in this revision is whether an order of attachment passed by the Executive Magistrate under Section 146 (1) of the Code of Criminal Procedure (for short 'Cr.P.C') is amenable to revisional jurisdiction under Section 397 of Cr.P.C. The property in dispute, and under attachment, is a two storied building. The dispute actually is between two factions within the same religion, or between two groups within a society. On the basis of the report submitted by the Sub Inspector of Police, Kottayam West Police Station, the Sub Divisional Magistrate, Kottayam, in his capacity as Executive Magistrate proceeded under Section 145 of Cr.P.C on the finding that there is possibility of breach of peace in view of dispute between the two factions concerning possession over the said building. On prima facie satisfaction of such a possibility, the Executive Magistrate, without and before **Crl. R.P No.152 of 2014** **2** proceeding to pass preliminary order and notice under Section 145 (1) of Cr.P.C initiated conciliatory efforts. Accordingly on 22.7.2013, the Executive Magistrate issued notice to both the parties to appear on 29.7.2013. In fact, the police happened to submit such a report about apprehended breach of peace on the complaint made by the 1[st] respondent herein, claiming to be the Secretary of the Adhoc Committee of Kerala Nadavathul Mujahideen. The said complaint was made on 25.6.2013. Finding that conciliatory efforts may not yield result, the Executive Magistrate directed the police on 30.7.2013 to take necessary precautions to prevent the apprehended breach of peace, and he called for report from the Revenue Tahsildar. On 23.8.2013, the Tahsildar submitted report that the dispute between the two factions still continues, and that it would be safe and proper to maintain the status quo. The status quo meant by the Tahsildar is the state of affairs consequent to the directions made by the police to the revision petitioners to close down the office functioning in the disputed building. The matter proceeded further, and on **Crl. R.P No.152 of 2014** **3** 7.10.2013, the Executive Magistrate passed preliminary order and notice under Section 145 (1) of Cr.P.C, requiring both the parties to appear before him on 18.10.2013 in person or with lawyers, for necessary enquiry into the dispute. As required in the notice, published and served under Section 145 (3) of Cr.P.C, both the parties appeared before the Executive Magistrate and filed statements containing the respective claims. 2. Pending the proceedings, the Executive Magistrate passed another order on 17.1.2014 under Section 146 of Cr.P.C attaching the property in dispute on the finding that it is not possible to decide on the basis of the materials furnished by the parties, as to who was in fact in possession of the building on the relevant date. The said order of attachment passed by the Sub Divisional Magistrate under Section 146 (1) of Cr.P.C is under challenge in this revision. 3. The learned counsel for the respondents, and also the learned Public Prosecutor representing the State, made a preliminary objection that this revision is not maintainable, **Crl. R.P No.152 of 2014** **4** or that order of attachment passed under Section 146 (1) of Cr.P.C is not amenable to revisional jurisdiction under Section 397 Cr.P.C for the reason that it is only an interlocutory order as meant under Section 397 (2) of Cr.P.C. This preliminary objection was heard in detail. 4. The learned counsel for the revision petitioner submitted that the impugned order cannot be said to be an interlocutory order in view of the decision of the Hon'ble Supreme Court in **Rajendra Kumar Sitaram Pande and Others v. Uttam and Another [1999 (3) SCC 134]** . In the said decision, the Hon'ble Supreme Court held that even an order of the Magistrate directing issuance of process cannot be said to be an interlocutory order. Answer to the question of law is contained in paragraph 6 of the judgment of the Hon'ble Supreme Court, that interlocutory order means or denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. This explanation given by the Hon'ble Supreme Court will show that a mere interim arrangement made by the Executive Magistrate under **Crl. R.P No.152 of 2014** **5** Section 146 (1) of Cr.P.C by an order of attachment is only an interlocutory order which will have limited force and effect, without affecting the rights of parties and without touching the important question in dispute, and also subject to withdrawal or cancellation under the proviso to Section 146 (1) of Cr.P.C. Order passed under Section 146 of Cr.P.C is always subject to final decision, it is subject to decision of the competent civil court, it will not decide the dispute between the parties, and above all, it is subject to cancellation or withdrawal under the proviso to Section 146 (1) of Cr.P.C. 5. The learned counsel for the revision petitioner cited a decision of the Allahabad High Court in **Gulabchand v. State of U.P [2004 Crl.L.J 2672],** that an order passed under Section 146 (1) of Cr.P.C without any material for subjective satisfaction about likelihood of breach of peace, is bad in law, and is amenable to revisional jurisdiction. But in 2007, another Single Bench of the Allahabad High Court decided otherwise in **Revati Raman & Others v. State of U.P. and Others [2007 (1) ALJ 448** ]. The purport and **Crl. R.P No.152 of 2014** **6** spirit of the said decision is that if any of the grounds or conditions mentioned under Section 146 Cr.P.C is satisfied, and the impugned order was passed on any of the grounds, it will have the character of only an interlocutory order, and such an order will not be amenable to revisional jurisdiction under Section 397 of Cr.P.C. In **Asok Kumar V. State of Uttarkhand & others [2013 (3) SCC 366],** the Hon'ble Supreme Court held that Sections 145 and 146 of Cr.P.C together constitute a scheme for the resolution of a dispute involving likelihood of breach of peace, and Section 146 cannot be separated from Section 145 of Cr.P.C. The Hon'ble Supreme Court explained that if the Executive Magistrate finds after enquiry that it is not possible to decide who among the parties was in actual possession at the time of passing orders under Section 145 (1) of Cr.P.C, the Executive Magistrate can order attachment of the property in dispute, and such attachment can continue in force till a competent civil court adjudicates and decides the dispute including right to possess. 6. I find that the impugned order in this case was **Crl. R.P No.152 of 2014** **7** made by the Executive Magistrate in a special circumstance where he found it difficult to decide who among the parties was in actual possession on the relevant date. On examination of the provisions and decisions, I find that it is only an interlocutory order not amenable to revisional jurisdiction under Section 397 of Cr.P.C. 7. Yet another question involved in this case is whether the Executive Magistrate will have to conduct enquiry as provided under Section 145 (4) of Cr.P.C before proceeding under Section 146 of Cr.P.C. This sub-section provides that once an order is passed under Section 145 (1) of Cr.P.C and the parties make appearance, the Executive Magistrate shall peruse the statements put in by the parties, 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 of the parties was, on the date of the order made by him under sub-section (1), in possession of the subject of dispute. This means that once the Executive Magistrate finds the possibility of breach of peace, and the parties made **Crl. R.P No.152 of 2014** **8** appearance before him as required under Section 145 (1) of Cr.P.C with claim and rival claim, the Executive Magistrate will definitely have to conduct an enquiry, and as part of this enquiry, he will have to record evidence, peruse the clam statements made by both the parties, and he will have to decide, only if possible, who among the parties was in fact in possession on the relevant date. It is pertinent to note that while making it mandatory that enquiry shall be conducted, the law does not make it mandatory that it shall be decided as to who among the parties was in fact in possession of the property. The law authorises the Executive Magistrate to take such a decision, only if he finds it possible on the basis of the materials and evidencea before him. 8. Once a decision is taken by the Executive Magistrate as provided under Section 145 (4) of Cr.P.C, he will have to proceed further under Section 145 (6) of Cr.P.C to declare such party to be entitled to possession, until evicted in due course of law. Order of declaration under Section 145 (6) of Cr.P.C is required only in a case where the Executive Magistrate has decided under Section 145(4) as **Crl. R.P No.152 of 2014** **9** to who among the parties was in fact in possession on the relevant date, or who should be treated as being in such possession on the relevant date. Declaration under Section 145 (6) of Cr.P.C is not required when he finds it difficult to decide who among the parties was in possession. In such a situation, as an interim measure, he can resort to the procedure under Section 146 of Cr.P.C and attach the property in dispute. Attachment under Section 146 of Cr.P.C is possible in three factual situations. One situation is that the Executive Magistrate finds a case of emergency and finds the necessity of immediate measures to prevent breach of peace, the other situation is where he finds that none of the parties was in fact in possession when he made orders under Section 145 (1) of Cr.P.C, and the third situation is where he finds it unable to satisfy himself as to who among them was in actual possession of the subject of dispute on the relevant date. If any of these situations is there, the Executive Magistrate can very well pass order of attachment under Section 146 (1) of Cr.P.C. Even before proceeding for enquiry under Section 145 (4) of Cr.P.C, **Crl. R.P No.152 of 2014** **10** order of attachment can be made under Section 146 (1) of Cr.P.C, if one of the three situations is there. 9. In this case, the impugned order shows that the Executive Magistrate Resorted to the procedure under Section 146 of Cr.P.C when he found it difficult to decide who among the parties was in actual possession of the building in dispute. It is submitted that no such enquiry was in fact conducted by the Executive Magistrate. Details of the enquiry conducted under Section 145 (4) of Cr.P.C are not available from the impugned order. I find that proper enquiry as prescribed under Section 145 (4) of Cr.P.C was not in fact conducted in this case by the Executive Magistrate. If so, he will have to conduct proper enquiry and decide who among the parties was in actual possession on the relevant date, if such decision is possible. If such decision is not possible, or if he finds it really difficult to take such a decision, the attachment made by him will have to continue until a competent civil court adjudicates and decides the dispute. If, by the time, the Executive Magistrate finds that there is no situation of breach of **Crl. R.P No.152 of 2014** **11** peace or if the apprehended breach of peace has ceased to exist, he can very well withdraw the attachment as provided under the proviso to Section 146 (1) of Cr.P.C. Once such withdrawal is made by the Executive Magistrate, he will have to release the property to the person from whose possession it was taken. Or, if there is decision by a competent Civil Court deciding the dispute or finding who among the parties was in fact in actual possession on the relevant date, the property can be released to that party. 10. It is made clear that the order of attachment made by the Executive Magistrate cannot continue indefinitely. The Executive Magistrate will have to proceed for enquiry under Section 145 (4) of Cr.P.C. If he finds it possible to decide as to who among the parties was in actual possession on the relevant date, he will have to pass declaration under Section 145 (6) of Cr.P.C and release the property. If he again finds it not possible to take a decision, he will have to wait for orders of the Civil Court. 11. Now it is submitted that the competent Civil Court has already disposed of the civil proceeding initiated **Crl. R.P No.152 of 2014** **12** by the respondents. If so, the Executive Magistrate can act in terms of the decision made by the Civil Court. Even otherwise, withdrawal under the proviso to 146 (1) of Cr.P.C is possible if the apprehended situation of law and order problem does not exist now, or if the Executive Magistrate does not find any situation of emergency for keeping the attachment order alive. 12. It is submitted that construction works were going on when the Executive Magistrate made order of attachment. Such a construction incurring huge amount cannot be indefinitely stalled. The Executive Magistrate will have to take appropriate decision within a very short period. In the result, this revision petition is dismissed as not maintainable. However, to ensure proper procedure and decision, the court below is hereby directed to proceed under Section 145 (4) of Cr.P.C and to pass appropriate orders as indicated above. The court below is directed to finalise the proceedings within a period of two months from the date of appearance of the parties. The parties will make **13** ## **Crl. R.P No.152 of 2014** appearance in the court below on 27.9.2014. **Sd/P.UBAID JUDGE** ma /True copy/ P.S to Judge