S.S. Sandhawalia C.J.@mdashWhether the satisfaction of the Magistrate with regard to the existence of a dispute likely to cause Breach of peace
u/s 145(1). Cri. p. C. 1973. (hereinafter referred as ''the Code'') and the further finding that the case is one of emergency u/s 146(1) of the Code,
can be validly recorded in the same composite order is the somewhat significant question which has necessitated this reference to the Division
Bench.
2. For the adjudication of the aforesaid question, it is unnecessary to advert to the facts in elaborate detail, It : suffices to mention that against a
background of protracted civil litigation betwixt the parties, the respondents made an application (annexure P/6) to the Station House Officer of
police station Bhadson. on Jan. 20. 1982, for initiation of proceedings u/s 145 of the Code. The police authorities thereafter made a report to the
Sub-Divisional Magistrate, who passed the impugned order, (annexure P/7), Therein, he found that there existed a serious dispute betwixt the
parties over the possession of agricultural land which was likely to spark off a breach of peace at any time. In the concluding para, of the order, he
further recorded his satisfaction that the case was one of emergency likely to endanger an immediate, breach of the peace and consequently
exercising his powers u/s 146(1) of the Code, he attached the agricultural land along with the crops standing thereon and appointed shri Balbir
Singh, Naib Tehsildar, a; a Receiver thereof.
3. The petitioners herein challenge the proceedings under Sections 145 and 146 of the Code on a variety of grounds including the one, that the
invocation of Section 145(1) and 146(1) of the Code, in the same order was an abuse of the. process of law. This criminal miscellaneous petition
first came up before my learned brother D.S. Tewatia. J. sitting singly. Noticing the significance of the question, as also some conflict of precedent,
in the view held by this Court as against three other High Courts, the matter was referred for an authoritative decision to a larger Bench.
4. As the issue turns primarily on the language of Sees. 145(1) and 146(1) of the Code, as also the sequence and the context in which these
provisions are laid, it seem to be apt to view the same against the background of their legislative history. Sections 145 and 1898 Cri. P. C. 146
(hereinafter called ''the old Code''), were contained in Chap. XII. under the heading ""Disputes as to Immovable property"". The provisions relating
to ""Unlawful Assemblies"", ""Public Nuisances"" and ""Temporary Orders in Urgent Cases of Nuisance Or Apprehended Danger"" were contained in
Chaps. IX, X and XI. respectively, Certain changes were introduced in Section 145 of the old Code by the amendment thereof in 1955.
However, all these provisions have now been recast under the new Code and find place in Chap. X under the main head ""Maintenance of public
Order and Tranquillity."" The third proviso to Sub-section (4) of Section 145 of the old Code, provided that if the Magistrate considers the case
one of emergency, he may at any time attach the subject of dispute, pending his decision under this section. That proviso has been deleted from
Section 145 of the Code and now included in Section 146(1) of the Code. It is unnecessary t0 delve further into the intricacies and the structure of
the changes made in Sees. 145 and 146 of the new Code because that appears to be intrinsically intended to rationalize and recast the provisions
rather than to make any radical changes in the law. This has been authoritatively so held in Mathuralal Vs. Bhanwarlal and Another, wherein, after
noticing and juxtaposing the provisions contained in the old Code its amendment by 1955 Act and the provisions of the new Code, it has been
observed as follows (Para 4):
Quite obviously, Sees, 145 and 146 of the Cri, P. C. together constitute a scheme for the resolution of a situation where there is a likelihood of a
breach of the peace because of a dispute concerning any land or water or their boundaries. If Section 146 is torn out of its setting and read
independently of Section 145, it is capable of being construed to ""mean that once an attachment is affected in any of the three situations mentioned
therein, the dispute can only be resolved by a competent Court and not by the Magistrate effecting the attachment. But Section 146 cannot be so
separated from Section 145. It can only be read in the context of Section 145. Contextual construction must surely prevail over isolationist
construction. Otherwise, it may mislead. That is one of the first principles of construction. Let us therefore look at Section 145 and consider
Section 146 in that context...
5. Now once it is held that Sections 145 and 146 of the new Code constitute a single scheme and are to be construed and applied harmoniously,
the answer to the question posed at the out-set seems to be self-evident. Once the Magistrate is satisfied that the dispute likely to cause a breach
of peace exists and there is adequate material before him to find that the case is clearly one of emergency needing urgent redress by way of
attachment and the appointment of a Receiver, there is no reason why he should be debarred from proceeding forthwith u/s 146(1) of the Code.
Indeed, in a peculiar urgent situation, calling for immediate action, any substantial time-lag betwixt the primary order u/s 145(1) of the Code and
the attachment and appointment of a Receiver, on the ground that the case is one of emergency, may not only be counter-productive, but might
well frustrate the very purpose of the preventive action visualised by these provisions. It is true that the satisfaction of the Magistrate that action u/s
145(1) of the Code is called for, must necessarily precede the finding that the case is of emergent nature requiring attachment of property.
However, from this, it does not necessarily follow that the satisfaction of the Magistrate u/s 145(1) of the Code and the finding of emergency
cannot be recorded in the said sequence in a composite order. On behalf of the petitioners, it was sought to be contended somewhat pedantically
that there must necessarily be a time-gap between the two and in any case the orders under Sections 145(1) and 146(1) of the Code must be
recorded separately. I have already opined that a long delay in this context might well work mischief and equally 1 see no magic in recording the
two orders on separate sheets of paper. I take the view that the satisfaction about the breach of peace and the finding of the case being one of
emergency, can follow close on its heels on the basis of the same or overlapping, materials and there can possibly be no infirmity in a composite
order recording the same in succeeding paragraphs.
6. The view I am Inclined to take above finds support from the prevailing precedents in three other High Courts. As has been opined earlier, the
changes in the new Code, in this context, are more or less structural and therefore, precedents with regard to the old Code continue to- be relevant
and applicable. In Mahant Bhagwandas Vs. Suggan and Others, , the learned single Judge, while differing from the court below, concluded as
follows (at p. 245):
...I am not prepared to agree with the conclusion of the Additional District Magistrate and hold that in appropriate cases a Magistrate is competent
to issue an order of attachment along with the preliminary order without it being first served on the parties.
7. The Division Bench in V.K. Rao v. Chandappa Appa. Devadiga (1977) 79 BLR 16, whilst construing the corresponding provisions of the old
Code, specifically held that these made it clear that the order under the third proviso of Section 145 (4) old, can be passed at any stage which
would include the initial stage also. Consequently, it was held that where the two orders were passed at the same time, they would not be in any
way vitiated. A learned single Judge of the Andhra Pradesh High Court in M, A. Rahaman v. State of Andhra Pradesh 1981 Cri LJ 1291, in
terms, followed the view in V.K. Rao''s case (supra) in the following words (at p. 1292):
It is also submitted that both the orders could not be made simultaneously. In the first instance, this assumption is wrong. The first order was made
u/s 145(1) Cr. P.C. and then the order u/s 146 Cr. P.C. was made. It is not necessary that there should be any time-lag between both the
orders....
8. On the large perspective, the Division Bench in Ajaib Singh v. Amar Singh ILR (1964) P&H 1, has taken the view that an overly hypertechnical
construction of Section 145 of the Code is to be eschewed and even an omission of the Magistrate to pass a formal order in accordance with Sub-
section (1) of Section 145 of the old Code, is merely an irregularity which is curable u/s 537 of the (old) Code, unless it can be expressly shown
that it caused grave prejudice to the other party. That view has been recently reiterated in Narinder Singh v. State of Haryana ILR (1081) P&H
84.
9. Undoubtedly, there appears to be a string of discordant notes struck by Single Benches within this Court. They appear to begin with the
observations of Sidhu, J. in Cri. M. No. 1678-M of 1980 (Kartar Singh v. State of Punjab), decided on Aug. 1, 1980 (Reported in 1981 Chand
Cri C 29 (P&H). The same learned Judge reiterated that view in Cri. M. No. 1502-M of 1980 (Nachhattar Singh v. Sucha Singh), decided on
August 6. 1980. In Smt. Zilo v. State of Haryana (1980) 7 Cri LT 234, Bains, J. sitting singly took the view that a composite order was illegal. He
apparently followed that view in Mela Singh v. Mst. Kesro 1981 Chand LR (Cri) 60. In both these cases the matter appears to have been treated
as one of first impression. In Mela Singh''s case (supra) no appearance having been put in on behalf of the respondents, it is plain that the opposite
view was not projected at all. Consequently, no reference to either principle or precedent appears for the dictum that a composite order was not
envisaged and the Magistrate has no jurisdiction to pass one of the said nature. In line with his earlier view, Bains, J. in Cri. Misc. No 2867-M of
1980 (Sh. Sarwan Singh v. State of Punjab), decided on Aug. 29, 1980, quashed the composite order in limine. Again in Indian Sulp. Acid
Industries Ltd. v. Gurfit Singh (1982) 84 PLR 143, the learned single Judge had observed as a dictum on the language of the provision alone that
the composite order was not envisaged.
10. With respect, it seems to me that the view expressed in the aforesaid Single Bench authorities of this Court does not seem to be tenable. It
stems primarily from an isolationist construction of the two provisions which was deprecated by their Lordships in Mathuralal Vs. Bhanwarlal and
Another, . If as held by the final Court. Sections 145(1) and 146(1) of the Code constitute a single scheme, then construing the same in watertight
compartments, as appears to have been done in this Court, is hardly tenable. The judgments taking the contrary view do not seem to have been
brought to the notice of the learned single Judges nor has the matter been adequately canvassed on principle. It would further appear that bath in
Kartar Singh 1981 Chand Cri C 29 and Nachhattar Singh''s cases (supra), a fallacy had been introduced in the reasoning by treating all the three
contingencies visualised in Section 146(1) of the Code, as at par. In my view the finding of a case being one of emergency, on adequate materials,
is wholly distinct from the other two. As has already been opined earlier, an overly hypertechnical construction, in this preventive action envisaged
by these provisions.
11. With the greatest respect it appears to me that the view expressed in Kartar Singh 1981 Chand Cri C 29; Nachhattar Singh : Smt. Zilo 1980 7
Cri LT 234 : Mela Singh 1981 Chand LR (Cri) 60 : Sarwan Singh and Indian Sulp. Acid Industries'' Ltd. cases a 982 PLR 143 (supra) is not
tenable and these cases are hereby overruled.
12. However, for clarity of precedent, it must be mentioned that I have opined specifically on the requirement u/s 146 of the Code with regard to
the case of being one of emergency. As to the question, when the order of attachment is sought to be rested on the alternative basis that none of
the parties was then in possession at the time of the preliminary order or where the Magistrate is unable to satisfy himself as to which of them was
in possession, I would at this stage wish to express no opinion whatsoever as the same has not at all been agitated before us.
13. To conclude both on principle and precedent, the answer to the question posed at the very outset is rendered in the affirmative and it is held
that the satisfaction regarding the existence of a dispute likely to cause a breach of peace u/s 145(1) of the Code and the further finding that the
case is one of emergency u/s 146(1) of the Code can on adequate materials, be validly recorded in the same composite order.
14. Learned Counsel for the parties are agreed that apart from the aforesaid significant legal question, other issues also arise on merits. We
accordingly direct that the case be placed before the single Bench for decision thereon.
D.S. Tewatia, J.
15. I agree.
