Thoppil Sankaranarayana Panicker and Others vs Achuthankutty Nair and Others

T.C. Raghavan, J.—The first of these revision petitions is against a preliminary order passed by the Executive First Class Magistrate u/s 145 of the Code of Criminal Procedure; and the second revision petition is against an order passed by the same Executive First Class Magistrate u/s 112 of the Code. The subject-matter of these revision petitions is the same,

The first point argued by the counsel of the petitioners in Crl. R. P. No. 236 of 1968 is that the Magistrate has no power to appoint a receiver u/s 145(4) of the Code: he has power to appoint a receiver only u/s 146(2). There are no recent authorities on this question; and there is also difference of opinion among some of the High Courts. In Diwan Chand v. Emperor AIR 1929 Lah 223 Dalip Singh, J., of the Lahore High Court following a decision of the Patna High Court and also an old decision of the Madras High Court held that the Magistrate had no power u/s 145(4) to appoint a receiver. According to this decision, the Magistrate has power only u/s 146(2) to appoint a receiver, because that provision specifically confers such power on the Magistrate; whereas, no such power is conferred on him by Section 145(4). Ramakrishnan Pillai v. S. Narayana Chettiar 1933 Mad WN 917 by Burn, J., is a similar ruling.

The contrary opinion is expressed in an old Division Bench ruling of the Madras High Court in Gopala Aiyar v. Krishnaswamy Iyer 11 Mad LW 459AIR 1920 Mad 209 Sadasiva Aiyar and Burn, JJ., held that a Magistrate had power to appoint a receiver u/s 145 of the Code of Criminal Procedure, though the powers of such a receiver might not be the same as those of one appointed u/s 146(2). Yet another decision taking the same view is the Division Bench ruling of the Travancore Cochin High Court in Joshua Sankaran v. Varghese Jacob AIR 1955 Trav-Co 190. Sankaran and Vithayathil, JJ,, held that the Magistrate was in order in exercising his jurisdiction u/s 145 of the Code and attaching the property and placing the same in the possession of a receiver. In the last case the question that came up for consideration was whether the presence of a receiver appointed by a Civil Court was a bar to the appointment of a receiver u/s 145(4) of the Code. Their Lordships, after obtaining a report which showed that no receiver appointed by the Civil Court was functioning, held that the appointment of a receiver by the Magistrate u/s 145(4) of the Code was proper.

It is not disputed that u/s 145(4) the Magistrate has jurisdiction to attach the property. If he has such power to attach, I fail to see why he should not be clothed with the power of appointing a receiver to take charge of the attached property. The reasoning of the Lahore High Court is that a Magistrate attaching u/s 145(4) should not dispossess the person in possession of the property. There may be cases where it may not be possible to find out as to who was in possession at the time of the attachment; and in such a case, the appointment of a receiver to take charge of the property might become essential. Even in cases where the person in possession is known, the receiver may allow the person to continue in possession under him; and for continuing such person in possession, it need not be held that the Court has no power to appoint a receiver. It may be that the powers of the receiver appointed u/s 145(4) are different from the powers of a receiver appointed u/s 146(2). Still, in my opinion, the Magistrate acting u/s 145(4) must have the power not merely to attach the property, but also to appoint a receiver to take charge of the same. The appointment of the receiver by the Executive First Class Magistrate in this case is therefore proper.

The complaint of the Counsel of the petitioners in these revision petitions is that they are sought to be arrested u/s 114 of the Code. The Magistrate has power u/s 117(3) of the Code to take bonds with or without sureties for keeping the peace or maintaining good behaviour until the conclusion of the enquiry. If such bonds are taken from the petitioners in these cases, there may not be any need to arrest them pending the enquiry. Therefore, the Executive First Class Magistrate will take such bonds with sureties from the petitioners in these cases to keep the peace or to maintain good behaviour pending the enquiry. In the meantime, the enquiry u/s 145 of the Code may be expedited, so that if the latter enquiry is closed before the enquiry under Chapter VIIIB, there may not be any need for completing the second enquiry. I feel that such a course will meet the ends of justice in these cases.

Crl. R. P. No. 236 of 1968 is dismissed. Crl. R. P. No. 237 of 1968 is allowed in part; and the Executive First Class Magistrate is directed to take interim bonds from each of the petitioners for Rs. 1,000/- with one surety each for a similar sum pending the enquiry commenced u/s 107 of the Code. After taking such bonds, the Magistrate will withdraw the warrants for the arrest of the petitioners. The Magistrate is also directed to expedite and complete the proceedings u/s 145 of the Code at any rate, within six weeks from the receipt of records from this Court.