Nuhura Nayak and Another vs Krushna Chandra Nayak

B.L. Hansaria, C.J.—A learned single Judge has referred for decision by a larger Bench the question as to whether, while examining a matter u/s 482 of the Code of Criminal Procedure ("the Code", for short), a receiver can be appointed, when pursuant to the order passed by the Magistrate in a proceeding u/s 145, Cr. P. C, possession of the land has been delivered to the person in whose favour the proceeding has terminated. The reference owes its origin to the fact that another learned single Judge of this Court in Markanda v. Balaram 1990 (I) OLR 58 held that a receiver can be appointed by the High Court while in seisin of the matter u/s 482, Cr. P. C, though the same power should be exercised very sparingly and in exceptional circumstances, only to do real and substantial justice. The learned single Judge before whom the present revision came, however, noted a number of decisions rendered by other High Courts of the country, the view taken in which appeared to be different from the one taken in Markanda''s case. As there is no Division Bench decision of this Court on this point, it was felt desirable that the point should be seated by a Bench.

At one stage, in the Code of Criminal Procedure of the country, there was no specific section conferring inherent power on the High Court, and so, some of the High Courts examined the question whether in the absence of specific provision, such a power can be exercised, and answered the question in the affirmative. There is no necessity to refer to these cases to which our attention has been invited by Shri Misra, as in the Code of Criminal Procedure, 1S73, Section 482 has soecifically conferred this power and as we are concerned in this proceeding with the power u/s 482, those cases have no relevance.

Section 145, Cr. P.C. confers power on an Executive Magistrate to decide the dispute concerning land or water when the same is likely to cause breach of peace. In Bhinka and Others Vs. Charan Singh, it was held that the foundation of the jurisdiction of the Magistrate is an apprehension of breach of peace, and to avoid the same, the Magistrate makes a temporary order irrespective of the rights of the parties, which have to be agitated and disposed of in the manner provided by law. As such, everything that can be done or should be done must have its relation with the apprehension of breach of peace. As maintenance of peace is primarily the duty of police, orders in the proceedings of the present nature were described as "police orders" in Dinomani Chowdhrani v. Brojo Mohini Chowdhrani (1901-01) 19 Indian Appeals 24, by the Privy Council.

Now, if a proceeding has terminated at the hand of the Magistrate and possession has been delivered to the successful party, it would be too much to say that apprehension of breach of peace still exists, and so, to prevent the same, interim arrangement by way of oppointing, say, a receiver should be made. It is precisely for this reason that it was held by a Division Bench of Madras High Court in Marudayya Thevar v. Shanmugasundara Thavar, AIR 1926 Madras 139, that Section 561-A of the old Code (the parallel provision in the new Code being Section 482) does not confer on the High Court powers to appoint a receiver in a case whereby the Magistrate''s order, a party has put in possession of the property and there is no danger of breach of peace unless the other party intends to defy the order of the Magisarate, which the High Court would certainly not encourage. While observing that Section 561-A has not conferred on the High Court such a power in such a case, the Bench stated that as the Magistrate has the power to appoint receiver in a pending proceeding ex hypothesi, the. High Court can appoint a receiver when an inquiry is pending and the inquiry being over, the High Court cannot appoint a receiver inasmuch as by invoking inherent power the High Court cannot confer upon itself a power not given by the statute. This Bench decision has bench followed in a number of single-Judge decisions of the said High Court, of which reference is not deemed necessary.

A learned single Judge of the Andhra Pradesh High Court, as Justice Chinnappa Reddy then was, held in Gulam Mohammed v. Iqbal Begum (1969) 1 AWR 549 that the foundation of the jurisdiction of a Magistrate to attach the subject of dispute or to appoint a receiver is the existence of the likelihood of breach of peace. Where a party has been put in possession of the land pursuant to the final order of the Magistrate, there can be no longer any apprehension of breach of peace, unless the party invoking the revisional jurisdiction of the superior Court defies the order and the superior Court will certainly refuse to countenance any such defiance. It was further observed that the High Court cannot revive an emergency which had ceased. It may be pointed out that a Magistrate has power to appoint o receiver only in case of an emrgency. Being of this view, it was opined that a receiver cannot be appointed in such a case by the High Court while in seisin of the matter u/s 561-A which does not confer any new or additional power on the High Court.

Shri Misra appearing for the petitioners refers us to Jethmul Bhojraj and Others Vs. Harbans Narain Singh and Others, and Naresh Prasad Mittal Vs. Mahavir Singh, Sucisions are not relevant for our purpose inasmuch as what was therein was that a revision lies to the High Court against an order of the Magistrate attaching the subject-matter of the proceeding and that a revisional Court can stay or suspend execution of any order passed by the Magistrate in a proceeding u/s 145, Cr. P. C.

In a case where possession has been delivered pursuant to the final order passed by the Magistrate u/s 145 Cr.P.C, larger interest of justice demands that parties must eschew violence and cease to take law into their own hands to cause breach of peace. If a person is aggrieved at the final order, it is within his rights to assail the same before the revisional Court. But then nothing should be done to encourage breach of peace by such a person and, as observed by Chinnappa Reddy, J. in the aforesaid case, the superior Court should refuse to countenance any such defiant attitude shown by a losing party. Shri Misra, however, submits that there may be cases where the final order passed by the Magistrate be so palpably wrong, say, one having been passed on the teeth of the decision of a Civil Court in favour of the party who lost at the hand of the Magistrate ; or where there may be valuable products on the land, protection of which may become absolutely necessary, as great harm may be caused in the interregnum to the person who approaches the revisional Court at whose hand he may win, that in appropriate cases it would be open to a High Court in a proceeding u/s 482 Cr.P.C. in a case even where possession has been delivered to order for appointment of receiver, learned counsel submits that denial of this right to a High Court would not be congeniai to the administration of justice, and so, the view taken by the Madras High Court in the aforesaid case that the High Court "cannot" appoint a receiver while in seisin of a matter in its inherent power should not be agreed to by us.

We have duly considered the aforesaid submission of Shri Misra. and we would not go to the extent of saying that in a proceeding u/s 482 Cr.P.C. it would not be open to a High Court to appoint a receiver in any case where the approach is after the proceeding has finally terminated at the hand of the Magistrate, because, according to us, the inherent power conferred on the High Court by Section 482 Cr.P.C. to pass such orders as may be necessary in the interest of justice or to prevent abuse of the process of the Court should not be '' hedged with the restrictions placed on the power. of the Magistrate to appoint a receiver in exercise of his power u/s 145/146 Cr.P.C. Section 482 Cr.P.C. having stated that nothing in the Code shall be deemed inherent powers of the High Court to make "such orders as may be necessary" to prevent abuse of the process of any Court or otherwise to secure the ends of justice, we are of the view that to put restriction on this power with reference to the restriction imposed on the power of the Magistrate in this regard would not be permissible. Of course, it is well-settled that inherent power cannot be exercised where it is prohibited by the statute. Reference may be made in this connection to Simrikhia v. Dolly Mukherjee in which it was held that in exercise of the inherent power u/s 482, a High Court cannot review its own judgment as that is barred by Section 362 of the Code (except to correct a clerical or arithmetical error), as otherwise the High Court would be doing what is expressly prohibited by the Cods. Earlier to this, in State of Orissa v, Ram Chander AIR 1979 SC 57 it was stated, while" dealing with the power u/s 561-A of the old Code, that the provisions of that Section could not be invoked to pass an order Which was specifically prohibited by the Code. Such is not the position here. There is no express provision in the Code that a receiver cannot be appointed in a proceeding which has come to its termination at the hand of the first Court. This apart, it is known that the Code hedges the power of a Magistrate to pass some order, but the same restriction is not placed on a higher Court when it is called upon to deal with the same matter. As an illustration, reference may be made to the power conferred on a Magistrate u/s 437 to grant bail in case of a non-bailable offence which imposes some restrictions, but when higher Courts are approached u/s 439 to obtain the same relief, their power has not been fettered, as has been done in the case of Magistrate u/s 437.

In view of the aforesaid, though the Madras High Court has opined that as the power of appointing receiver is available to a Magistrate during the pendency of the inquiry, ex hypothesi the High Court can also appoint a receiver during such pendency, we would say with respect that such an embargo on the power of the High Court cannot be read. But then as even while exercising power u/s 482, the High Court is concerned with a dispute covered by Section 145 Cr. P. C, the basic requirement for invocation of that provision, namely, existence of the likelihood of breach of peace, has to be kept in the forefront, and only such orders, either final or interim, should be passed or would be open to be passed as is felt necessary to prevent the likelihood of breach of peace. Where, however, possession has been delivered to a party pursuant to the final order of a Magistrate, we do not think if the losing party should be allowed to indulge in violence or threaten breach of peace so much so that to prevent him from doing so. order of appointing receiver should be passed. In such a case, it would be open to the aggrieved party to immediately approach the Civil Court and pray for such order as deemed necessary to protect his interest. This takes care of the submission of Shri Mishra that an order appointing receiver may be necessary in some cases disposed of u/s 145. As to the instances given by Shri Mishra about an order having been passed by a Magistrate in the teeth of recent Civil Court''s decision, we would say that that may furnish a good cause to set aside the order of the Magistrate, but not to appoint a receiver.

We, therefore, answer the reference by stating that though Section 482, Cr.P.C. does not prevent passing of an order appointing receiver in an appropriate case even after final termination of the proceeding at the hand of the Magistrate, the same would not be done in a case where possession has already been delivered to a party pursuant to the final order of a Magistrate. Any such order, according to us, would be illegal, though it would not be without jurisdiction.

R.K. Patra, J.

I agree.