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1987 Supreme(All) 162
IN THE HIGH COURT OF ALLAHABAD
B. L. Yadav
KAMLA DEVI - Appellant
Versus
STATE OF UTTAT PRADESH - Respondents
Cri. Misc. 14613 Of 1996
Decided On : 03/25/1987
An order of attachment under Section 146(1) of the Code of Criminal Procedure, 1973, can only be passed in respect of the land specified in the preliminary order under Section 145(1), and not in respect of a different plot or building situated over it.
Headnote:
CRIMINAL PROCEDURE CODE - SECTIONS 145(1), 145(2), 146(1) - INTERPRETATION - ATTACHMENT - SCOPE AND PROCEDURE - INHERENT POWERS OF HIGH COURT - SECTION 482 - APPLICABILITY.
Fact of the Case:
An application was filed under Section 482 of the Code of Criminal Procedure, 1973, to quash proceedings under Sections 145/146 of the Code in a dispute over Plot No. 87 Karamchari Nagar, Kanpur. The Metropolitan Magistrate passed a preliminary order under Section 145(1) and an order of attachment under Section 146(1) in respect of Plot No. 116, which was a different plot.
Finding of the Court:
The Court held that the order of attachment under Section 146(1) could only be passed in respect of the land specified in the preliminary order under Section 145(1), and that the order of attachment in respect of a different plot was illegal. The Court also held that the fard kurki, or the actual proceedings of attachment, were made contrary to the provisions of Section 146(1), as articles were taken out from the house and the occupier was virtually dispossessed.
Issues: 1. Whether an order under Section 146(1) of the Code can be passed consistent with the order under Section 145(1) in respect of the same plot, or whether the order under Section 146(1) can be passed in respect of different plots or different constructions. 2. Whether the inclusive definition of the expression "land or water" given under Section 145(2) of the Code would permit that in case an order under Section 145(1) was passed in respect of one plot or land, can an order of attachment be passed in respect of a different plot or the building situated over it. 3. Whether the relief sought by the applicant was covered by the provisions of Section 482 of the Code.
Ratio Decidendi: 1. The Court interpreted Sections 145(1) and 146(1) of the Code and held that the order of attachment under Section 146(1) could only be passed in respect of the land specified in the preliminary order under Section 145(1). The Court reasoned that Section 146(1) was a corollary or consequential to Section 145(1) and could not go beyond the subject of dispute or preliminary order passed under Section 145(1). 2. The Court interpreted Section 145(2) of the Code and held that the inclusive definition of "land or water" did not permit the passing of an order of attachment in respect of a different plot or building situated over it, where the preliminary order under Section 145(1) was passed in respect of a different plot. The Court held that the inclusive definition clause could only be applied to the land in respect of which the preliminary order under Section 145(1) was passed. 3. The Court held that the instant case was covered within the scope of the inherent powers of the High Court under Section 482 of the Code, as the Metropolitan Magistrate had passed an incorrect order of attachment in respect of a different land and had committed an apparent mistake in preparing the fard kurki.
Final Decision: The Court allowed the application and quashed the order of attachment dated 20-9-1986 passed under Section 146(1) of the Code and the fard kurki. The Court directed that the order of attachment be withdrawn and the property and articles attached be released in favor of the person from whose possession they were attached.
B. L. YADAV, J.
( 1 ) -THIS is an application under section 482 of the Code of Criminal Procedure, 1973 (for short the Code) for quashing the proceedings pending in the Court of the City Magistrate, Kanpur Nagar in Case No. 2/86 (Smt Ram Piari v. Smt. Kamla Devi) under sections 145/146 of the Code.
( 2 ) THE facts of the case so far as they are relevant to dispose of the present application are these. An application - under section 145 of the Code was filed by Opposite Party No. 2 (hereinafter referred to as the first party) against the applicant, the second party. On that application the report dated 15-9-86 of the Station Officer, Chakeri was obtained and the learned Metropolitan Magistrate was satisfied on the basis of that report and other information that the dispute likely to cause breach of the peace exists in respect of Plot No. 87 Karamchari Nagar, Kanpur. A preliminary order under section 145 (1) of the Code was passed on 17-9-1986 by giving the details and surroundings of the plot (vide Annexure 4 to the affidavit page 22 of the paper. book ). Both parties were directed to appear on 30-9-1986 and to produce evidence in support of their possession. But the Metropolitan Magistrate considered the case to be one of emergency and he passed an order of attachment under section 146 (1), of the Code on 20-9-1986 in respect of Plot No. 87/116 (Annexure 10 to the affidavit page 38 of the paper book ). This order of attachment was sought to be given effect by the police by preparing a fard Kurki under section 146 of the Code. It was the case of the applicant that the fard Kurki was not prepared consistent with the order of attachment inasmuch as the order of attachment was passed in respect of Plot No. 87 and 116 as is clear from annexure 10 to the affidavit (page 40 of the paper book ). Whereas the fard Kurki was prepared by the police in respect of Plot No. 87 or 116. Further the grievance of the applicant was that while effecting the order of attachment a number of articles were taken out and the articles alongwith the house were sealed and given in the supurdagi of one Chandrapal Singh.
( 3 ) IT was the case of the Opposite Party No. 2 the order of attachment was correctly passed and fard Kurki was correctly prepared in respect of Plot No. 116.
( 4 ) THE learned counsel for the applicant urged that the provisions of sections 145 (1) and 146 (1) of the Code were supplementary and complementary, in other words section 146 was a corollary and just cause quential to section 145. Only the land or the constructions in respect of which a preliminary order under section 145 (1) is passed, can be made the subject matter of attachment in case of emergency or other conditions provided under section 146 (1 ). The preliminary order was passed in respect of Plot No. 87 whereas the order of attachment was passed in respect of Plot No. 116, which was a different land. The attachment was effected by fard Kurki by taking out the articles from the house of the applicant and by virtually dispossessing the applicant, which was beyond the scope of section 146 (1 ). In other words the order of attachment must be consistent with the preliminary order under section 145 (1) and must be in respect of the possession of the subject of dispute. The moment an article was removed from the house, it becomes moveable property and the same cannot be made the subject of attachment. Sri Harihar Prasad Tripathi the learned counsel for the State of U. P. urged that the order under section 146 (1) of the Code was correctly passed and required no interference. The learned counsel for Opposite Party No. 2, on the other hand, urged that in fact the dispute was in respect of Plot No. 116 where the applicant was raising constructions with the help of her husband, hence the attachment order even in respect of Plot No. 116 was correctly passed and the attachment was in respect of plot where construction was being raised. The attachment was properly effected and the far
