1997 Supreme(Guj) 149

Gujarat High Court
Judgename :N.N.MATHUR
JAGDISHBHAI DHARAMSI THAKORE - Appellant
Versus
STATE - Respondent
S.CRI.A. 113 of 1997
Decided On : 03/17/1997

Headnote:(a) Criminal Procedure Code, 1973 - Secs. 145 & 146 - Composite order - Requirements - It must be borne out from both the orders that they satisfy seperately the existence of condition for drawing orders under two sections - Impugned order shows that no preliminary order as required under Sec. 145(1) is drawn by Magistrate - In absence of preliminary order under Sec. 145(1), order of attachment under Sec. 146(1) is exfacie illegal & void.

       In a case of composite order, it must be borne out from both the orders that they satisfy separately the existence of conditions for drawing such orders under two sections.

       [Para 14]

       In my view, no preliminary order as required by Sec. 145(1) of the Code of Criminal Procedure has been drawn by the learned Magistrate.

       [Para 14]

       Once it is held that no preliminary order as required under Sec. 145(1) has been drawn up, the order of attachment under Sec. 146(1) becomes exfacie illegal and void, as for an order under Sec. 146(1), the condition precedent is of a preliminary order under Sec. 145(1). Thus, in my view, the impugned order of the learned Magistrate dated 22.10.1996 is not only menifestly illegal but also without jurisdiction.

       [Para 15]

       (b) Criminal Procedure Code, 1973 - Sec. 146(1) & (3) - Order of attachment - No further order - Order that attachment shall continue till the dispute is settled by Civil Court not incorporated in the original order - It is stipulated in the warrant of attachment - Held, order is erroneous.

       The impugned order is exfacie illegal for one more reason that the learned Magistrate thought that his jurisdiction has come to an end after the order of attachment has been made under Sec. 146(3) and therefore, he ordered that the attachment shall continue till the dispute is settled by the Civil Court. If the learned Magistrate wanted to say, he ought to have said so in the original order itself. However, this part has been indicated in the warrant of attachment. This is erroneous in itself.

       [Para 16]

       (c) Criminal Procedure Code, 1973 - Sec. 146(1) - Order of attachment - Conditions to be satisfied - Stated.

       Section 146(1) of the Code of Criminal Procedure contemplates three contingencies whereby an order of attachment of the subject matter of dispute may be made, viz.

       (i)

       Where the Magistrate considers the case one of the emergency,

       (ii)

       If the Magistrate decides that none of the parties was in possession on the date the order under Sec. 145(1) of the CrPC was made or even within two months preceding it in the case of dispossession, or

       (iii)

       If the Magistrate is unable to satisfy himself as to which party was in such possession.

       [Para 17]

       (d) Criminal Procedure Code, 1973 - Secs. 145 & 146 - Scheme under - Scope & procedure - Stated while making attachment of disputed immovable property.

       The Scheme of Sec. 145 indicates that, after the preliminary order under Sec. 145(1) is drawn a summary enquiry is to be held by the Magistrate under Sub-sec. (4) of Sec. 145 to decide whether any and which of the parties was on the date of the order made by him under Sub-sec. (1) in possession of the subject of dispute. Therefore, the second and third contingencies can possibly arise only after the Magistrate has concluded the enquiry as contemplated by Sec. 145(4) of the Code and the Magistrate may pass an order of attachment at that state until the competent Civil Court has determined as to which of the parties are entitled to possess the subject property of dispute. Whereas in the case of first contingency, an order of attachment may be made at the time after proceeding under Sec. 145 is drawn up and before order under Sec. 146(6) of the Code is made. Therefore, the proceedings are still alive after an order of attachment in the case of emergency is made and the Magistrate does not become function officio after passing such an order.

       [Para 17]