Mohinder Singh vs State of Punjab and ors.

Harphul Singh Brar, J.

This is an acrimonious petition between two sets of people contending themselves to be the Directors of and in possession of the office buildings of the Hoshiarpur Express Transport Co. Ltd., Hoshiarpur. The law invoked for the purpose is Section 482 of the Code of Criminal Procedure, for quashing the order of Sub Divisional MagistratecumExecutive Magistrate, Hoshiarpur, dated January 13, 1993, annexed as Annexure PI with the petition, passed under Section 145 of the said Code. And as a sequel thereto, there is an order of the Executive Magistrate, appointing the Tehsildar as. a Receiver, Annexure P8, and that too is the subject matter of attack.

For the disposal of this petition, the barest minimum facts need be taken note of. It is stated in the petition that on a Kalendra made by respondent No. 3, Station House Officer, Police Station Model Town, Hoshiarpur, proceedings under section 145 of the Code of Criminal Procedure, were initiated. Along with the proceedings under Section 145 of the Code, respondent No. 4, viz. the Tehsildar, Hoshiarpur, was appointed as the Receiver for the property and notices were given to the contesting parties to produce their evidence in support of their respective cases. It is then stated that after receipt of the notice, the petitioner produced various documents in support of the claim that there was a dispute between the Management of the Hoshiarpur Express Transport Co. Ltd. and its Directors, and as majority of the Directors were with the petitioner on the basis of that dispute, some of the Directors were changed and there was division between different Directors. The majority group had appointed Shri Manjit Singh Dali as the General Manager and they had started functioning and performing their duties as the Directors of the Company. In proof or the proper functioning of the Company, some documents such as Annexures P2 and P7 as stated in the petition were produced. It is also stated in the petition that in view of the huge evidence it was impossible for respondent No. 2, that is, Sub Divisional MagistratecumExecutive Magistrate, Hoshiarpur to come to a conclusion as to which of the parties was in possession of the Company. It may be stated that the petitioner claims himself to be the Director of the Hoshiarpur Express Transport Co. Ltd.

Later on, the petitioner filed another Criminal Miscellaneous Application (No. 3828 of 1993) again under section 482 of the Code of Criminal Procedure, to place on record the additional Annexures P8 to P17 on the main File and also prayed therein that the proceedings under Section 145 of the Code of Criminal Procedure initiated by the SubDivisional Magistrate cumExecutive Magistrate, Hoshiarpur and orders Annexures P1, P8 and P9, passed by him, be quashed.

Annexure P1, that is, the order, dated January 13, 1993 passed by the Sub Divisional Magistrate cumExecutive Magistrate, Hoshiarpur, has been assailed mainly on the ground that the order is not a speaking order and the learned Magistrate has given no reasons/grounds for his satisfaction before passing the said order.

JUDGMENT Annexure P8 has further been challenged on the ground that it could not be passed as no emergency existed for attachment of the property.

it has then been submitted by the learned counsel for the petitioner that the buses of the Company are movable property and, thus, could not be attached under Sections 145 and 146 of the Code of Criminal Procedure. He further contended that Annexure P9, viz the order, dated February 1, 1993 of the Executive Magistrate, Hoshiarpur is illegal as the Receiver could not be allowed to obtain two per cent of commission fee out of the income of the Company.

Reply has been filed, on behalf of respondents 2, 4 and 5, in which the averments made by the petitioner about the illegality of passing the orders, Annexures P1, P8 aid P9 have been denied. According to the respondents, the impugned orders are legal and valid and no infirmity can be found in those orders.

The learned counsel for the respondents at the outset has prayed that this petition may be dismissed solely on the ground that the orders Annexures P1, P8 and P9, passed by, the Magistrate under Sections 145 and 146 or the Code of Criminal Procedure are interlocutory orders within the meaning of Section 397 (2) of the Code and, thus, the same cannot be assailed under Section 482 of the Code of Criminal Procedure. According to the learned counsel when the remedy of Revision against such interlocutory orders has been specifically barred under Section 397(2) of the Code, the petitioner cannot be allowed to invoke the extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure which will amount to nullify the effect of Section 397(2) of the Code. In order to justify his contention, R.P. learned counsel for the respondents has cited Kartar Singh and Others v. Smt. Pritam Kaur and Another, 1985(1) C.L.R. 338 and Dharampal and Others v. Smt. Ramshri and Others, JT 1993 SC 61, wherein it has been held that an order of attachment of immovable property under Section 14(1) of the Code is interlocutory in nature within the meaning of Section 397(2) of the Code and consequently no Revision against the same is maintainable. Moreover it is now a settled law that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. It has been so held in Dharampal''s case (supra).

Faced with this situation, the learned counsel for the petitioner contends that the impugned orders, Annexures P1, P8 and P9 of the Magistrate are without jurisdiction as the conditions laid down under Sections 145 and 146 of the Code had not been complied with before passing those orders. Thus, according to him, the said orders are liable to be held as non est in the eye of law.

As stated in the beginning, the learned counsel for the petitioner has reiterated his stand that the grounds of satisfaction of the Magistrate about the existence of breach of peace have not been mentioned in the order, dated January 13, 1993 passed under Section 145 of the Code of Criminal Procedure, which are sine qua non for proceeding with the case further under these provisions; and since these grounds are lacking in the order, the same is without jurisdiction and is liable to be set aside.

So far as order, Annexure P8 is concerned, the learned counsel for the petitioner states that it is also liable to be quashed, as no emergency existed for attachment of the property and the buses of the Company being movable property could not be attached.

Regarding the order, Annexure P9, the learned counsel for the petitioner vehemently argued that the Magistrate has gone beyond jurisdiction in permitting two per cent commission fee to the Receiver out of the income of the Company. In order to substantiate his argument. the learned counsel has cited (1) Jayantilal Padamsheo Shah v. Chandu Khushadas Udhwani and others, 1986 Cri.L.J. 1988, (2) Anand Ram Nanda v. The State, 1986(2) Cri.L.J. 2008, (3) Peria, Mannadha Gounder and others v. Marappa Goundar, A.I.R. 1969 Madras, 4 11, (4) Kirpal Singh Jolly v. State of Punjab and others. 1975 C.L.R. 67, (5) Shankarlal v. Alhaz Khaja Abdul Hasan and another, 1991 Crl.L.J. 1556 and (6) Barjinder Singh, Chief Editor, The Daily Ajit, Jalandhar v. State of Punjab and others, 1991 Cri.L.J. 2040.

The learned counsel for the respondents stated that the learned Magistrate has given the grounds of satisfaction while passing the impugned order under Section 145 of the Code. He then submitted that while effecting attachment of movable property the Court can attach even movable property, which is the subjectmatter of dispute. In order to substantiate his argument, the learned counsel for the respondents relied upon Gurmel Singh and others v. Sub Divisional Magistrate, Phul and others, 1990(1) RCR 238 , Om Parkash and another v. Dhanpat Ram, (1979) VI Cr. L T . 284 and Shri Guru Singh Sabha v. The State and Others, 1993 CC Cases 76 (HC).

After all the travail, no distance has been covered. It is undisputably now left to be examined whether the impugned orders under sections 145 and 146 of the Code of Criminal Procedure, are within the Jurisdiction of the Sub Divisional Magistrate cumExecutive Magistrate. For this purpose, before discussing the various authorities cited by the learned counsel on the point, it is necessary first to refer to the order passed by the Magistrate on January 13, 1993, whereby he initially started proceedings under Section 145 of the Code of Criminal Procedure. The order riads as under :

"State v. Sucha Singh etc.

Warrant of attachment in the case of a dispute as to the possession of land etc.

To

The Tehsildar

Hoshiarpur

Whereas a kalendra under Section 145 Cr.P.C. has been submitted by the S. H.O. P S. Model Town, Hoshiarpur and the perusal of the said kalendra reveals that a dispute has occurred between the partners and workers of the Hoshiarpur Express Transport Co. Ltd. Hoshiarpur as a result one person has been killed. Now there is likely to induce a breach of peace existed between the partners and workers of the said Transport Company concerning certain office buildings situate within the limit of my jurisdiction and the said parties are thereupon duly called upon to state in writing their respective claims as to the fact of actual possession of the said office buildings and whereas upon due inquiry into the said claim, I am unable to satisfy myself as to which of the said parties was in possession, as aforesaid.

This is to authorise you as receiver under Section 145 Cr.P.C. and require you to attach the said office buildings of the Hoshiarpur Express Transport Co. Ltd., Hoshiarpur, by taking and keeping possession thereof and to hold the same under attachment until the decree or order of a competent Court determining the rights of the parties or the claim to possession, shall have been obtained and to return this warrant with an endorsement certifying the manner of its execution.

Sd/

SubDivisional Magistrate

MagistrateCumExecutive Magistrate,

Hoshiarpur."

Dated 13.1.1993.

After perusal of the order of the Magistrate, I find that the Magistrate had jurisdiction to pass the order because the circumstances prevailing at the relevant time so warranted and that requisite, necessary and sufficient material was available on the record on consideration of which the order was passed by the Magistrate. Though the order is not very happily worded yet the Magistrate after perusing the kalendra presented by the Police has noted in the order, as is evident from its reproduction above, that there existed a dispute between the partners and Workers of the Hoshiarpur Express Transport Co. Ltd., Hoshiarpur and on account of the said dispute, one person had been killed; and that the said dispute was likely to cause a breach of the peace concerning certain office buildings of the said Transport Company, within his local jurisdiction. He, therefore, on his being so satisfied, called upon the parties to attend his Court and to put in written statements of their respective claims as to the fact of actual possession of the said office buildings. It clearly shows that the Magistrate did apply his judicious mind before initiating criminal proceedings under Sections 145 and 146 of the Code. It is cardinal principle that unless grave prejudice is shown by the aggrieved party, the proceedings would not be vitiated by mere defect in the form of preliminary order under Section 145 (1) of the Code. It has been so held by a Division Bench of this Court in Narinder Singh and Another v. The State of Haryana and others, 1981 C.C. Cases 67 (P&H). It has been clearly held that the mere omission to record the satisfaction and the grounds of his being so satisfied with regard to the existence of the dispute in the preliminary order by the Magistrate, would not vitiate the whole proceedings, It has again been held in Gurmel Singh''s case (supra) as under :

"...... for investing the Executive Magistrate with jurisdiction what is necessary is that certain material facts should exist. It is the existence of certain necessary facts which confer jurisdiction on the Executive Magistrate. It is not the words employed by him in passing an order. There is no magic in certain words being used. The words by themselves will not invest jurisdiction where necessary facts does not exist. On the contrary, if the necessary facts exist the failure to use certain words will not oust the jurisdiction of the learned Magistrate. So what is material is the existence of certain facts. Broadly speaking, these facts are (i) that two parties have a live dispute concerning any land or water or boundaries thereof within his local jurisdiction, and (ii) that the Executive Magistrate is satisfied either from a report of a police officer or upon other information that a dispute likely to cause a breach of peace exists, the Magistrate can proceed under Section 145(l of the Code. After indicating his satisfaction, he can call upon the parties to appear before him and submit their respective statements of claim with regard to the subject matter of the dispute."

in the case in hand, the Magistrate was satisfied on the basis of the report of the Police that there was apprehension of breach of peace. The Court has to see the substance rather than form. The situation before the Magistrate was alarming. Both the parties were bent upon to take over the possession of the buildings and the buses of the Company. Thus, he rightly passed the order taking into consideration the factual position prevailing at the relevant time.

In the same manner, I do not find any fault with the order, Annexure P8, passed by the Magistrate after taking into consideration the prevalent circumstance''s and the factual position as existed at that time.

Now, about the authorities cited by the learned counsel for the petitioner. I need not discuss the above point in detail on the basis of all the authorities cited by the counsel, as Narinder Singh''s case (supra) is a direct Division Bench authority which is based upon R. II. Bhutani''s case (supra), in which it was remarked as under

"The satisfaction under subsection (1) of section 145 is of the Magistrate. The question whether on the materials before him, he should initiate proceedings or not is, therefore, in his discretion which, no doubt, has to be exercised in accordance with the well recognised rules of law in that behalf. No hard and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction. The language of the sub section is clear and unambiguous that he can arrive at his satisfaction both from the police report or "from other information which must include an application by the party dispossessed. The High Court, in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate."

In this view of the matter, no error legal or otherwise has been detected which could justify interference in the impugned orders Annexures P I and P 8, under section 482 of the Code of Criminal Procedure, as both these orders are within jurisdiction of the Magistrate. However, the order, dated February 1, 1993 of the Magistrate, Annexure P 9, cannot be sustained as allowing of two per cent commission fee out of the income of the Company to the Receiver is on a very higher side. This order, dated February 1. 1993, Annexure P 9 is, thus, quashed and the Magistrate is ordered to fix the remuneration commensurate with the status of the Receiver.

20 Resultantly, this petition stands dismissed so far as the impugned orders, Annexures P I and P 8 are concerned. Regarding order Annexure P 9, it stands modified to the extent indicated above.