1982 Supreme(MP) 737

IN THE HIGH COURT OF MADHYA PRADESH
C.P. SEN, J.
Mohd. Rafiq - Applicant
Vs.
Mohd. Azizur Rahman - Respondents
Cr. R. No. 645 of 1982 (J)
Decided On : 04-12-1982

Headnote:(1) Criminal Procedure Code, 1973 – S. 146 (2), 397 (2) and 482 – order of appointment of receiver under S. 146 (2) – prohibition contained under S. 397 (2) not applicable – revision is maintainable – powers under S. 482 can also be exercised.

       (2) Criminal Procedure Code, 1973 – S. 145 and 146 – jurisdiction under – when available – possession and dispossession should be within two months from report to Magistrate.

        Short Note

       1. By the impugned order dated 4 – 10 – 1982 the Executive Magistrate observed that the party No. 1, have not filed their written statement and in order to maintain peace during Moharrum festival it is necessary to attach the property and appoint a receiver and he appointed Mohd. Abdul Jamin Khan as the receiver so that the Imambada can be utilised during the Moharrum festival for keeping Tajias and Savaris. Against this order, this revision was filed and the operation of the impugned order was stayed. Since the Moharrum festival was to commence, the parties agreed on 14 – 10 – 82 that the possession of the Imambada be given to the receiver by the applicant No. 1 with the condition that the key would be deposited in Court on 1 – 11 – 1982 by the receiver. The applicant No. 1 undertook to remove all his articles from the premises before handing over possession to the receiver as the receiver was not prepared to take the responsibility for the same. This agreement was entered into so as to enable the receiver to perform Moharrum festival in the Imambada per usual practice. It appears that the key could not be handed over on that day but on the next day i.e. on 15 – 10 – 82 the application giving a list of the articles which could not be shifted and those articles used to be kept there every year at the time of Moharrum festival while handing over possession to the Sangathan for performing the festival. The receiver was directed to hand over the key in the Court on 1 – 11 – 82. Since 1 – 11 – 82 was holiday, the case came up for hearing on 2 – 11 – 82 and the receiver was permitted to continue in possession.

       Held : A preliminary objection is raised that the revision is barred under section 397 (2) as no revision lies against an interlocutory order. According to Shri A.C. Chande learned counsel for the non – applicants 1 to 7 the impugned order appointing receiver is an interlocutory order. It is open to the applicants to show to the Executive Magistrate that there is no longer any apprehension of breach of peace and get the order vacated. Reliance is placed on certain decisions showing that even after attachment of the disputed property under section 146, the Magistrate is not deprived of his jurisdiction to proceed with the case under section 145. This view has since been approved by the Supreme Court recently but this can be of no help to the non – applicants 1 to 7 in showing that the impugned order is an interlocutory order. The Supreme Court in Madhu Limaye v. State of Maharashtra (AIR 1978 SC 47) held that the impugned order in the instant case rejecting the application challenging the jurisdiction of the Court to proceed with trial, even though it may not be final in one sence, is surely not interlocutory so as to attract the bar of sub – section 2 of S. 397. It must be taken to be an order of the type falling in the middle course i.e. order passed during the course of a proceeding not finally concluding the same. Maintaining this view, the Supreme Court in V.C. Shukla v. State (AIR 1908 SC 962) held that the term 'interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial. The revisional power can be attracted if the order was not purely interlocutory but intermediate or quasi final. So the order framing a charge is not interlocutory order. Therefore, considering these decisions the preliminary objection is overruled by holding that the impugned order is not al interlocutory order as it finally determines the application for appointment of receiver during pendency of the preceding. Besides, even if it is a preliminary order this court has inherent power under section 482 of the Code to quash the impugned order if it is not in accordance with the provisions of the Code as has been held in Madhu Limaye's case (supra).

       2. It has been rightly pointed out by Shri Hafeezullah learned counsel for the applicants that incases of dispossession Magistrate gets jurisdiction under section 145 only when either of the party is wrongfully dispossessed within period of 2 months from the date a report is made to the magistrate. If the dispossession is beyond 2 months, then the Magistrate gets no jurisdiction to decide the matter under section 145 of the Code. According to their own case, the non – applicants 1 to 7 have pleaded that they were dispossessed on 27 – 12 – 81 but the Istagasa was filed by the police on 1 – 3 – 82 i.e. beyond the period of 2 months. It may be that the non – applicants have made a report to the police on 27 – 12 – 81 but that is of no help as the report of dispossession has to be made to the Magistrate and not to the police within a period of 2 months. In their report dated 27 – 2 – 81 they had mentioned that they were dispossessed on 27 – 12 – 81. This is also the date mentioned about dispossession in their report to the Collector as wakf Chairman. In the affidavit flied by the non – applicant No. 1 Mutawalli the date of dispossession is shown to be 27 – 12 – 81. This is also the date mentioned in their application under section 146. Under the circumstances, the Executive Magistrate had no jurisdiction to pass the preliminary order and appoint receiver in a proceeding under section 145 of The Code.

       3. Even otherwise, it has not been made out in the application for appointments of receiver under section 146 that there is a case of emergency. The Executive Magistrate has also not cared to find out as to who was in possession on the date of the application. The application was made on 17 – 3 – 82 by the non – applicants No. 1 to 7 and they clearly admitted the applicant No. 1 to be in possession and they prayed that it would be just, equitable and in the interest of justice to appoint a receiver, nothing more was made out. Admittedly, the applicant No. 1 was a tenant of the Sangthan having taken the Imambada on a rent of Rs. 50/ – p.m. If it was a fact that the Sangathan was dispossessed by the applicant No. 1 on 27 – 12 – 81 then they would have taken immediate steps for taking possession. The report was made after 2 months on 27 – 2 – 82. Although application was made on 17 – 3 – 82 the impugned order came to be passed after 7 months on 4 – 10 – 82 mainly on the ground that because of the ensuing Moharrum festival it is necessary to maintain peace by appointing a receiver for holding the festival in the Imambada. The possession of the Imambada was given to the receiver by handing over key by applicant No. 1 as per agreement of the parties before this Court on 15 – 10 – 82 on the condition that the receiver would hand over the key to this Court, thereby confirming that the applicant No. 1 was in possession. The present proceeding by the non – applicants 1 to 7 is misplaced. Their remedy lies elsewhere. Whether the applicant No. 1 is a tenant or a tenant holding over or a trespasser and liable to be evicted can only be agitated in civil Court. AIR 1978 SC 47 and AIR 1980 SC 962 followed. Revision allowed.