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Criminal Revision No. 392 of 1968, decided on 15th July 1968.

Ss. 145(1) & 537-- Dispute over immovable property‑Non‑compliance with provi sions of S. 145(1) regarding making of preliminary order‑Per se not vitiative of proceedings‑Such non‑compliance, an irregularity curable under S. 537 unless it has occasioned miscarriage of justice‑Magistrate on perusal of police report, supported by pending criminal proceedings between parties in respect of disputed property, summoning parties, without stating grounds of his satisfaction for likelihood of breach of peace‑No objection raised by petitioner before Magistrate‑ Magistrate, in circum stances, held, rightly assumed jurisdiction and there had been no prejudice resulting on miscarriage of justice.

Emperor v. Sis Ram A I R 1930 Lah. 895; Gadagamma Venkataparhi v. Baliarsimhuni Sanyasiraju A I R 1932 Mad. 36s; Ch. Muhammad Siddiq v. Sahibzada Sahibyar Khan P L D 1963 B J 26; The State v. Abdul Sattar P L D 1965 Kar. 305; Abdul Majid v. The State 1968 P Cr. L J 659; Gul Muhammad v. Kubra Begum P L D 1961 Pesh, 76; Mg. Po Lon v. Mg. Bo. On and another A I R 1925 Rang. 111(2); V. M. Abdul Rahman v. King‑Emperor A I R 1927 P C 144; Kapoor Chand and another v. Suraj Prasad A I R 1933 All; 264; P. Swaminatha PilLal v. S. Raghvachariar and others A I R 1947 Pesh. 8; Channan Singh v. Emperor A I R 1938 Lah. 345 Muhammad Ishaque Chowdhury v. Nur Mahal Begum and others P L D 1961 S C 426; Durga Din v. Smt. Rani Udai Kunwar A I R 1954 All. 579 and State v. Mukanda Singh A I R 1938 All. 621 ref.

P. Swaminatha Pillal v. S. Raghvachariar and others A I R 1934 Mad. 161; Municipal Committee, Kohat v. Mst. Piari A I R 1947 Pesh. 8; The State v. Muhammad Azam P L D 1960 Posh. 47 and Nur Muhammad Sk. v. Rajeb All Sk. P L D 1965 Dacca 410 rel.

S. 145‑Dispute regarding joint property ‑ Object of S. 145 ‑Prevention of dispute concerning immovable property likely to cause breach of peace‑Dispute as to fact of actual or attempted possession and also as to right to possess, own or use likely to cause breach of peace ‑ Covered by S. 145 ‑ Property undivided holding jointly owned and possessed by parties‑Question of partition and exclusive possession of certain property In dispute‑Conten tion that S. 145, in circumstances, not attracted‑ Rejected.

Arjun Chandra Kapali v. Jogendra Chandra Kapali Choudhury P L D 1962 Dacca 683; Abdus Salam Meaji v. Abdul Kadir Bepari P L D 1967 Dacca 715 and Sham Lal Mahtan and others v. Rajendra Lal and others 21 Cr. L J 790 ref.

Basudeo Singh v. Mahadeo Lal A I R 1925 Pat. 618 and Malik Fateh Muhammad Tiwana v. The Crown and another P L D 1949 Lah. 397 rel.

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----S. 145(4), second proviso‑Emergency case‑Attachment‑Management and custody of property attached‑Magistrate after tracing background of dispute coming to conclusion that apprehension of breach of peace existed and that it was a case of emergency‑Magistrate, however, without specifically mentioning word "emergency" in his order mak ing attachment and appointing Girdawar and Patwari for custody, management and control of attached property mentioning them as "receiver"‑Held, mere use of word "receiver" for such persons entrusted with management and control of property would not invalidate order‑Such appointment, in circumstances, being inevitable measure not per se vitiative of proceedings‑Word "receiver" used in order, in circumstances, may be condoned and regarded as a "manager" or "supardar".

Once a Magistrate considers the case to be one of emergency and invoking the powers vesting in him under the second proviso to subsection (4) of section 145, attaches the property, what are going to be his powers to deal with the property so attached One way of doing so is to invoke the powers vesting in him under subsection (8) of section 145 and make an order for the proper custody and sale of the property if in his opinion any crop or other produce of the disputed land is subject to speedy and natural decay. If, however, there is no such occasion to invoke these powers it cannot be said that having attached the property the Magistrate is absolutely helpless to deal with it in a proper manner in the absence of any specific provision empowering him to appoint a receiver.

Diwan Chand and others v. Emperor A I R 1929 Lah. 223 and Nankishore Prasad Singh v. Radhakishun A I R 1943 Pat. 124 ref.

A. Q. Shaukat v. S. M. Jafar P L D 1966 Lah. 809 ; Mowa Lal v. Emperor A I R 1918 Pat. 197; Gopala Aiyar v. Krishaswamy Iyer A I R 1920 Mad. 209; Maung Saa U v. Maung Lu Gale A I R 1938 Rang. 88; Srinivasa Pillay v. Sathayappa Pillay 141 C 759 and Faizur Rahman v. Sheikh Ladley 42 C W N 351 rel.

Ss. 145(4), second proviso & 146(2) ‑ Warrant of attachment ‑ Form XXIII of warrant of attachment applicable under both Ss. 145(4) & 146(2).

There is only one warrant of attachment existing in Schedule V of the Criminal Procedure Code prescribed under section 146. Although the earlier section 145 also refers to attachment in a case of emergency, the fact that two distinctly separate forms of warrants of attachment have not been prescribed in the aforesaid Schedule, one under section 145 and the other under section 146 would rather t tend to suggest that in fact there is‑‑no difference in the two forms of attachment. Of course, it would have been more appropriate if section 145, Cr. P. C. were also mentioned along with section 146 in Form XXIII prescribed for a warrant of attachment existing in Schedule V of the Code. Since an attachment in the event of an emergency bas been specifically provided for in the second proviso to section 145, Cr. P. C., the mere non‑existence of a relevant form with specific reference to section 145, Cr. P. C. prescribed for a warrant of attachment under this section cannot by any stretch of imagination, be so construed as to render this provision nugatory and the only reasonable inference that can be drawn from this is that in point of fact Form XXIII of a warrant of attachment has been prescribed under both the sections, namely, 145 and 146 of the Code.

Pir Anwar Behman for Petitioners.

Ata‑ul‑Haq for Respondents Nos. 1 to 5.

Sh. Nasir Ahmad for A.‑G. for the State.

Dates of hearing: 24th, 27th, 28th May; 12th and 13th June 1968.

This Criminal Revision No. 392 of 1968, filed by the four petitioners, Arshad Mahmud and his three sisters against their uncle Masud Khan, his son Raza, his wife Mst. Razia and his mother lust. Nur Jehan respondents, besides one Fazal Karim and the State, under section 439 of the Criminal Procedure Code (hereinafter called as the Code) has arisen in the following circumstances.

2. The relationship between the parties would be clear from a perusal of the pedigree‑table given in paragraph 2 of the Revision Petition. They are descendants of a common ancestor, Rehmat Ullah whose two sons Mahmud Khan and Abdullah owned 5J squares of land besides a residential bungalow in Chak No. 88/RB, Tehsil and District Lyallpur. Mahmud Khan had two sons Daud Khan father of the petitioners 1 to 4 and Masud respondent No. 1, who was married to Mst. Razia respondent No. 4, one of the two daughters of Abdullah Khan who had no male issue. The landed property and the bungalow have been the bone of contention between the parties with a background of previous litigation which appears to have started during the lifetime of Abdullah Khan. Case F. I. R. No. 49 dated 8th of July 1965, registered under sections 148, 325/448/452 read with section 149, P. P. C. against Abdullah Khan and seven others during the former's lifetime is stilt pending trial. Yet another case F. I. R. 18/67 dated 18th March 1967, registered at the same police station. under section 448/109, P. P. C. in regard to the possession of the bungalow was pending investigation at the time when the present proceedings were initiated. Proceedings for the partition of the property initiated at the instance of the petitioners arc also pending decision in the Court of the A. D. C(C), Lyallpur.

On 22nd of January 1968, respondent No. 3, Mst. Nur Jahan widow of Mahmud Khan submitted an application to the Inspector‑General of Police alleging against Arshad Mahmud petitioner No 1 and others that they wanted to take forcible possession of the disputed land and tae residential bungalow of which she claimed to be in actual physical possession. About a fortnight later on 9th February 1968, Fazal Karim one of the respondents and a munsht of Mst. Nur Jahan aforesaid, who is the grandmother of petitioners 1 to 4, submitted an application to the S. H. O. Police Station Dijkot that on 20^th of January 1968 several persons headed by Sardar Rashid Ahmad, an ex‑M.N.A. forcibly entered into the residential bungalow in his possession on behalf of Mst. Nur Jehan, Mst. Razia and Masud Khan respondents, kept him in illegal detention and removed agricultural produce from the godown as also sugar‑cane from the fields outside. It was in this background of strained relations between the parties that apprehending danger of the breach of, peace over the disputed property that the Police of Dijkot Police Station considered it necessary to initiate proceedings under section 145 of the Code against the parties and submitted report (Annexure A') dated the 10th of February 1968 attaching the copies of the previous first information report and other reports.

3. On receipt of this report, Mr. S. A. Hakim, the learned Magistrate summoned the parties for the 6th of March 1968. In the course of these proceedings the respondents applied for the attachment of the properties in question. After about half a dozen adjournments when the parties had put in written statements of their respective claims, the case was transferred to the Court of Mr. Muhammad Amir Shah, Magistrate First Class, on 11th of April 1968, who being thus seized of the matter passed the impugned order dated 18th of April 1968, attaching the landed property and the house and appointing Asmatullah and Khair Din Lambardars of Chak No. 88 as receivers of the estate. It appears that neither the petitioners nor the receivers themselves were happy over the appointment and on being moved by both, the learned Magistrate modified his order dated 18th of April 1968 and substituted instead the Girdawar and the Patwari as the receivers of course, maintaining the order of attachment. This order exists at page 63 of the lower Court's record and is dated 27‑4‑68.

4. Feeling aggrieved the petitioners filed the present revision petition in this Court The learned counsel for the petitioners raised the following contentions:

(1) That the first order dated 28th of February 1968 passed by the learned Magistrate on the basis of the police report, whereby he summoned the parties was in contravention of the provisions contained in section 145 (1) of the Code, inasmuch as no grounds were stated by him to show that he was satisfied that a dispute likely to cause breach of the peace did really exist in regard to the property in question.

It was argued that the laconic order straightway summoning the parties clearly indicated that the learned Magistrate had not applied his mind to the facts of the case and was not conscious of the mandatory provisions contained fn. section 145 (1) of the Code;

(2) that the property being admittedly an undivided holding jointly owned and possessed by the parties, section 145 of the Code was not attracted; and

(3) that the impugned order of attachment of the properties and appointment of receivers could only be passed by the learned Magistrate under section 146 (2) and that too after giving a finding on the basis of an inquiry that he could not. satisfactorily ascertain as to which of the parties was in possession or that none of them was in possession.

5. In support of his first contention raised by the learned counsel for the petitioner, alleging contravention of section 145(1). of the Code on the part of the Magistrate by simply proceeding to, summon the parties on receipt of a report from the police without expressing his satisfaction as to the existence of a dispute concerning the property in question likely to cause a breach of the peace or the statement of grounds for his satisfaction, the learned counsel for the petitioner placed reliance on Emperor v. Sis Ram (A I R 1930 Lah. 895), Gadagamma Venkatapathi v. Baliarsimhuni Sanyasiraju (A I R 1932 Mad. 368), Ch. Muhammad Siddiq . Sahibzada Sahibyar Khan (P L D 1963 B J 26), The State v. Abdul Sattar (P L D 1965 Kar. 305), Abdul Majid v. ,The State (1968 P Cr. L J 659) and Gul Muhammad v. Kubra Begum (P L D 1961 Pesh. 76). On the basis of these authorities it was sought to be argued that there was nothing to suggest that the learned Magistrate while summoning the parties had actually applied his mind to justify himself as to the existence of a dispute likely to cause breach of peace which alone confer jurisdiction on him to take cognizance of the matter. It was asserted that for the foregoing reasons the entire proceedings were without jurisdiction and as such, ab initio null and void.

6. On the contrary it was emphatically argued by the learned counsel for the respondents that although it was obligatory on the part of the learned Magistrate to state grounds of his being satisfied as to the existence of a dispute likely to cause breach of peace, the irregularity was curable under section 537 of the Code as there was nothing to suggest that it caused prejudice to any party, resulting in miscarriage of justice. It was also contended that since no objection to the: assumption of the Magistrate's jurisdiction was taken, the question could not be raised at this stage. Reliance was placed on Mg. Po Lon v. Mg. Bo. On and another (A I R 1925 Rang. 111(2)), V. M. Abdul Rahman v. King‑Emperor (A I R 1927 P C 144), Kapnor Chand and another v. Suraj Prasad (A I R 1933 All. 264), P. Swaminatha PilLal v. S. Raghvachariar and others (A I R 1947 Pesh. 8), Channan Singh v. Emperor (A I R 1938 Lah. 345) and Muhammad Ishaque Chowdhury v. Nur Mahal Begum and others (P L D 1961 S C 426).

7. I now proceed to discuss the aforesaid authorities. The factual correctness of the allegations cannot be denied that in his preliminary order dated the 28th of February 1968, on receipt of the police report, the learned Magistrate simply proceeded to summon the parties without indicating in the least as to his satisfaction much less giving any grounds for such satisfaction justifying his cognizance of the matter. In Emperor v. Sis Ram a Single Bench authority, the learned Magistrate without recording a preliminary order as required by sub section (1) of section 145 of the Code, on receipt of an appli cation, inspected the spot and without issuing a proper notice to the opposite‑party ordered restoration of possession of the disputed house to the applicant. The order was challenged on the ground that (i) no preliminary order had been recorded by the Magistrate, (ii) that no notice was served upon the opposite party and (iii) that in the final order there way no mention of the imminent danger of breach of the peace. The revision was accepted by Bhide, J. and the order was quashed. One distinguishing feature of the instant case is that unlike the precedent case, a proper notice had been issued to the parties before. In the next authority Gadagamma Venkatapathi v. Baliarsimhuni Sanyasiraju again a Single Bench authority, it was held that section 145 (1) of the Code made it obligatory on the Magistrate to state the grounds that on account of a dispute there was a likelihood of the breach of peace. In this case, it appears that no such preliminary order in terms of the aforesaid provision was made and consequently the Magistrate directed the subordinate Magistrate to make a local inquiry and submit a report to him. The order was set aside.

In Durga Din v. Smt. Rant Udai Kunwar (A I R 1954 All. 579) the learned Judge took the view that "A Magistrate acquires jurisdiction to take proceedings under section 145 only after he expresses his satisfaction, either on a police report or otherwise, that there was a likelihood of a breach of the peace". Another irregularity noticed in this case was that the learned Magistrate had given the option to attach property to the Sub‑Inspector in his discretion which was held to be illegal. To almost similar effect was State v. Mukanda Singh (A I R 1938 All. 621). In the next authority Ch. Muhammad Siddiq v. Sahibzada Sahibyar Khan which is again by a learned Single Judge, the learned Magistrate on receipt of an application under section 145 (1) straightway issued notice to the opposite‑party and subsequently passed an order appointing a receiver. It was held that the preliminary order did not conform to the legal requirements. In Gul Muhammad v. Mst. Kubra Begum two authorities Abdul Rehman v. Emperor and Kapur Chand v. Suraj Prasad were examined by their Lordships and yet in view of all the facts of the case before their Lordships, Ortcheson, J. who delivered the judgment observed as follows:

"The mere fact that Magistrate issues notice to the parties to attend his Court and put in written statement by no means necessarily implies recognition on his part that the jurisdiction depends on the existence of a danger of a breach of the peace."

It may be observed that in the case before their Lordships a complaint was filed by Mst. Kubra Begum before a Magistrate alleging that the petitioners had taken forcible possession of a portion of her house during her absence to Karachi. The complaint was sent to the Station House Officer who merely reported that the house was joint property and no cognizable offence appeared to have been committed. On this the Magistrate served a notice upon the parties under section 145 of the Code. In The State v. Abdul Sattar A. S. Faruqui, J. re‑affirmed the view taken in the earlier authorities that the provision contained in section 145 (1) was imperative and the Magistrate acquired jurisdiction only when there was art apprehension of the breach of the peace and as such it must appear from the order of the Magistrate that he had applied his mind before coming to the conclusion that a dispute likely to cause breach of the peace exists. Most of the aforesaid authorities were examined by my learned brother Shameem Husain Kadri, J. in Abdul Majid v. The State and the same view was adopted by his Lordship. An examination of the aforesaid authorities would clearly indicate that in none of these, the question of the curability and otherwise of the defect in the preliminary order was expressly adverted to and incuribility may be impliedly informed.

8. On the contrary in the authorities relied upon by the respondents, this question was directly examined. In Mg. Po Lon v. Mg. Bo On and another it was held by the learned Judge that section 537 of the Code was sufficient to cure the defect. In V. M. Abdul Rehman v. King‑Emperor the learned Lords were considering the effect of the non‑compliance of the provision contained in section 360 of the Code which is equally mandatory fn nature making it imperative that the evidence of each witness should be read over to him. Having considered the various authorities, their Lordships observed as follows:

"To sum up, in the view which their Lordships take of the several sections of the Code of Criminal Procedure, the bare fact of such an omission or irregularity as occurred in the case under appeal, unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned, is not enough to warrant the quashing of a conviction, which in their Lordships, view, may be supported by the curative provisions of sections 535 and 537."

This view was adopted by the Full Bench in Kapoor Chand arid another v. Suraj Prasad. It was observed:

The sole, criterion, given by section 537 is whether the accused person has been prejudiced or not. The object of procedure is to enable the Court to do justice, but if, in spite of even of a total disregard of the rules of procedure, justice has been done, there would exist no necessity for setting aside the final order which is just and correct simply because the procedure adopted was wrong.

The jurisdiction of a Magistrate to take action under section 145, Criminal P. C. arises from the fact that he has received certain information and that he is satisfied as to the truth of that information. The jurisdiction of the Magistrate does not depend on how he proceeds. If he has jurisdiction he is not deprived of jurisdiction merely because his procedure 9s erroneous or defective,"

and any defect in procedure whether of illegality or irregularity was curable by section 537, Cr. P. Code, if the accused was not prejudiced. In P. Swaminatha Pillar v. S. Raghyachariar and others (A I R 1934 Mad. 161) and Municipal Committee, Kohat v. Mst. Piari (A I R 1947 Pesh. 8) the view taken was that the absence of a preliminary order under section 145 (1) did not take away the jurisdiction of the Magistrate and was not vitiative of the proceedings, the irregularity being curable under section 537 of the Code. To the same effect were The State v. Muhammad Azam (P L D 1960 Pesh. 47) and Nur Muhammad Sk v. Rajab Ali Sk. (P L D 1965 Dacca 410). In the latter authority reliance was placed on Muhammad Ishaq v. Nur Mahal Begum, In this Supreme Court authority, their Lordships while examining the question of assumption of jurisdiction under section 145 (1) and the exercise of this jurisdiction observed as follows:

"It is necessary, according to the tenor of the section, that before an order thereunder can be issued the Magistrate must first be satisfied with regard to the matters therein specified and then after being so satisfied he shall make an order in writing stating the grounds of his being so satisfied'. This statutory provision, therefore, does prescribe the mode for the exercise of the jurisdiction conferred by it and there can be no doubt that Magistrate exercising the said jurisdiction are expected to comply strictly with the said provision of law. But to say that a failure to follow the prescribed mode must in every case render the exercise of the jurisdiction invalid and illegal is, in our opinion, too wide a proposition. In our view there is a distinction between the elements, which are essential for the foundation of jurisdiction, and the mode in which such jurisdiction has to re exercised. The elements necessary for the foundation of jurisdiction under section 145 of the Criminal Procedure Code are that the Magistrate must be satisfied:‑‑

(a) that a dispute likely to cause a breach of the peace exists,

(b) that the dispute refers to land or water or the boundaries thereof; and

(c) that such land or water is situated within the limits of his territorial jurisdiction.

If these elements exist, they are sufficient to vest the Magistrate with the jurisdiction to make the preliminary order in the mode prescribed therein. If the Magistrate after having acquired jurisdiction does not strictly comply with the other requirements of the section as to the form of the order and does not state the ground of his being so satisfied, the order is no doubt defective, but this does not mean that the order is also without jurisdiction. The jurisdiction to make the order depends upon the existence of the elements necessary for founding the jurisdiction. Once the Court has validly acquired that jurisdiction, it cannot be said that it has only the jurisdiction to make a correct order in the prescribed form and that whenever the order is incorrect or defective, the order must also be held to be without jurisdiction. We are unable therefore, to hold that the mere omission to state the grounds upon which the Court is so satisfied, in the initial order under section 145 of the Criminal Procedure Code necessarily makes the order also without jurisdiction. The most that can be said is that the failure to do so is a non‑compliance with a rule of procedure and mere non compliance with a rule of procedure generally is not an illegality vitiating the entire proceedings.

In our opinion, when a Court exercises a jurisdiction not strictly in accordance with the mode prescribed by the statute, the question must necessarily arise as to whether the defect amounts merely to an irregularity or an illegality and the answer to this question must necessarily depend upon the character and the object of the rule which has been contravend. In a case falling under this section it patent that the object of the rule requiring the Court to state the grounds of its satisfaction in the initial order is merely to inform the parties against whom proceedings are sought to be initiated of the reasons which nave induced the Court to take action and thus to enable them to put up a proper defence. If the initial order recorded does not state these reasons and the party against whom it is directed finds it difficult to prepare his defence by reason of the vagueness of the order, he can always apply to the Court for the statement of the grounds.

On the other hand, if the parties do not feel any difficulty owing to the omission of the grounds and adduce evidence in support of their respective cases, it is difficult to appreciate upon what principle it can be said that the defect in toe order amounts to an illegality vitiating the entire proceedings."

Thus the crux of the matter is that a mere non‑compliance wit the mandatory provision contained in section 145 (1) would not per se be vitiative of the proceedings and would be curable under section 537 of the Code, unless it is established that it has occasioned miscarriage of justice. Applying the tests Lald down by their Lordships of the Supreme Court, I am clearly of the view that although the learned Magistrate did not comply with the mandatory requirement of law in making a preliminary order, yet from a perusal of the police report supported by the first information reports of pending criminal proceedings between the parties in respect of the properties in question, he was satisfied as to the existence of a dispute likely to cause breach of the peace between the parties and had rightly assumed jurisdiction in the matter. I am further convinced that this assumption and exercise of jurisdiction which instead of being challenged was passively submitted to by the petitioners did not occasion any prejudice to them resulting in the miscarriage of justice. It is in evidence that the petitioners themselves had moved the A. D. C. for the partition of the land in question which case is still pending decision. It was urged on behalf of the respondents that in fact the likelihood of the breach of the peace stood further established by subsequent course of events, when a case under section 364/ 307/149, P. P. C. relating to the forcible abduction of Masud Khan respondent was registered against the petitioners and others at Railway Police Station, Sarshamir Road, on the 19th of May 1968 as indicated by a copy of the first information report placed on the record in the course of arguments, though objected to by the learned counsel for the petitioners as irrelevant. But even if this is ignored, in view of the earlier discussion I rule out the first contention of the learned counsel for the petitioners.

9. This brings us to the second contention that the property being jointly owned and possessed by the parties, proceedings under section 145 of the Code were not competent. The learned counsel placed reliance on Arjun Chandra Kapali v. Jogendra Chandra Kapali Chowdhury (P L D 1962 Dacca 683) and Abdus Salam Meaji v. Abdul Kadir Bepari (P L D 1967 Dacca 715). In the former authority, the view taken was that a possession by a co‑owner of the entire joint property was perfectly lawful as he had a title not only to his undivided share but to the whole of the property, and as such, there was no bar to an owner of an undivided share of a property to be in possession of the whole of that property, except that his possession on the basis of legal title could not be adverse to the other co‑sharers. In the latter authority proceedings under section 145 of the Code were challenged in revision before [my learned brother A. S. Chowdhury, J. on the ground that none of the parties in the proceedings claimed exclusive possession of the property which was the subject‑matter of a partnership business. It was held that the proceedings under section 145, Cr. P. C. in a case like this were misconceived. Reliance was placed Inter alia on Sham Lal Mahtan and others v. Rajendra Lal and others (21 Cr. L J 790) in which Admi, J. of the Patna High Court took the view that:‑‑

"In a proceeding under section 145 of the Criminal Procedure Code, the dispute must be between parties, each of whom would claim exclusive possession of the property in dispute, and where the dispute was between parties one of whom claimed joint possession of the property in dispute, proceedings could not be drawn under section 145."

These authorities do not seem to be applicable to the facts of the case before me, According to the position taken up by the petitioners in their written statement, the parties are in separate possession of their shares in the joint Khata. It was held in Basudeo Singh v. Mahadao Lal (A I R 1925 Pat. 618) that where co‑sharers were in separate possession of their shares in a joint property but there was a dispute as 6 the possession of certain other shares of which each party claimed exclusive possession, section 145 was applicable. In Malik Fateh Muhammad Tiwana v. The Crown and another (P L D 1949 Lah. 397) a Division Bench authority, in which the judgment was delivered by the former Chief Justice of Pakistan, Muhammad Munir, J. (as he then was), it was held by their Lordships that "the object of the section is the prevention of dispute as to the immovable property likely to causes breach of the peace and the words used a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, are wide enough to cover all kinds of disputes, not only disputes as to the fact of possession but also disputes as to the right to possess or the right to own or use immovable property if they are likely to cause a breach of the peace . . . . Even if neither party is found in possession and apprehension of a breach of the peace still exists, the Magistrate cannot discharge the proceedings on the finding that neither party's possession is proved, and he can still proceed to make an order under section 146 attaching the property until a Civil Court has determined the rights of the parties or of the persons entitled to possession thereof." It was further held that "it would be not only unduly straining the language of the section but also inserting in it words that do not exist, if the section were construed to mean that only such disputes as arise out of the fact of possession are within its purview " . . . . . "all disputes whether they arise out of actual possession or attempted possession or out of use of immovable property are covered by the section if they are likely to cause a breach of the peace". In view of the above discussion the second contention also stands repelled.

10. This brings us to the last contention whereby the attachment of property and the appointment of the receivers have been challenged. From a perusal of the record it appears that on the first date of hearing, i.e. 6th of March 1968, Masud Khan respondent had presented an application for the attachment of the property. It was not till the 18th of April 1968 after about half a dozen adjournments that Mr. S. A. Hakim who had initiated proceedings was transferred and the final order of attachment was made by Pir Amir Ahmad Shah to whose file the case had been transferred. In this order (Annexure 'J') after tracing the entire background of the dispute, the learned Magistrate came to the conclusion that there was an apprehension of the breach of the peace between the parties till such time as the land was not partitioned. Having said so, he proceeded to appoint Asmatullah and Khair Din Lambardars of the village as receivers of the property. As stated earlier, their appointment as receivers was not acceptable to the two Lambardars which was also objected to by Arshad Mahmud petitioner who sub mitted an application to the learned Magistrate (page 61 of the lower Court's record) that the two Lambardars should be substituted by the Girdawar or the Tahsildar. It was on the 27th of April 1968 that the Girdawar and the Patwari were substituted in place of the two Lambardars to which none of the parties had any objection. The validity of the order of attachment and appointment of receivers has been assailed on the ground that it could only be done under section 146 of the Code after the Magistrate had come to the conclusion that at the relevant time either none of the parties was in possession or it could not be determined as to which of the parties was in possession. In the first instance it may be observed that the order of attachment could also be made under the second proviso to subsection (4) of section 145 of the Code which reads as follows:

"Provided also, 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."

From a perusal of the order dated 18th of April 1968, it becomes abundantly clear that the learned Magistrate was satisfied that it was a case of emergency although the word "emergency" was not specifically used in the order. This would be clear from the following observations made therein:

"From the facts on the file and the statement of the parries it becomes clear that there is immediate apprehension of breach of peace between the parties so long as the case of the division of the land has not been decided by the concerned Court. I, therefore, have no way to hush up tension between the parties---------------:

There is no way out but to appoint receiver of the joint property-------------."

Thus, it is evident that there could be no valid objection to the attachment of the property. It was held by this Court in A. Q. Shaukat v. S. M. Jafar (P L D 1966 Lah. 809) that an omission on the part of the Magistrate to make a preliminary order in conformity with the mandatory provision contained in section 145 (1) did not vitiate the attachment order. Thus the only part of the impugned order open to question is that of the appointment of receiver. It cannot be gainsaid that the appointment of receivers is envisaged only under section 146, Cr. P. C. after the Magistrate is unable to determine as to which of the parties was in possession or finds that none of them was in possession. Admittedly this stage had not yet been reached in the proceedings and as such prima facie it would appear that the appointment of receivers was not in accordance with law. It was contended on behalf of the respondents that Arshad Mahmud petitioner though earlier having objected to the appointment of receivers had himself made a statement before the Magistrate that he had no objection to the appointment of the Girdawar and the Patwari as receivers and it was then that the two Lambardars who were appointed as receivers earlier was substituted by the Girdawar and the Patwari. The learned counsel for the petitioners referred me to Diwan Chand and others v. Emperor (A I R 1929 Lah. 223) wherein it was held that an appointment of a receiver under section 145(4) was illegal and the provision contained in section 146 (2) could not be so read as to make its provision applicable to attachment under section 145 (4):

11. The question, however, arises that once a Magistrate considers the case to be one of emergency and invoking the powers vesting in him under the second proviso to sub section (4) of section 145, attaches the property, what are going to be his powers to deal with the property so attached One way of doing so is to invoke the powers vesting in him in subsection (5) of section 145 and make an order for the proper custody and sale of the property if in his opinion any crop or other produce of the disputed land is subject to speedy and natural decay. If, however, there is no such occasion to invoke these powers it cannot be said that having attached the property the Magistrate is absolutely helpless to deal with it in a proper manner in the absence of any specific provision empowering him to appoint a receiver. Nankishore Prasad Singh v. Radhakishun (A I R 1943 Pat. 124) a Division Bench authority would be helpful in determining the issue. In the case before their Lordships, a Magistrate attached all the crops in about seven hundred Bighas of land under section 145 (4) of the Code and directed the Sub‑Inspector to sell the crops to the highest bidder and deposit the sale proceeds into the treasury. It was further directed that the land would be settled to the highest bidder for a period of one year. The legality of the order of settlement was challenged before their Lordships. It was contended that although the Magistrate had in a case of Emergency the power to attach the property, he had no power under that section to appoint a receiver which could only be exercised under the provision of section 146 (2) of the Code. On this analogy, it was argued that the Magistrate had no power to settle the land. While repelling the argument their Lordships referred to several authorities with approbation. In Mowa Lal v. Emperor (A I R 1918 Pat. 197) Jawala Prasad, J. observed as follows:‑

"As said by my learned brother, an attachment under section 145 may have the same effect as an attachment under the Civil Procedure Code. It may possibly amount to something more than that, that is to say, after attachment the Magistrate may take steps for the proper care and custody of the property and prevent the removal of the property by any of the rival claimants or stranvers."

In Gopala Alyar v. Krishan Swamy Iyer (A I R 1920 Mad. 209) again a Division Bench authority, the following observation by Burn, J. was relied upon:‑

"When an attachment is made under section 146, the taking and keeping of possession is contemplated. I see no reason to suppose that attachment under section 145 has any other meaning. One object of the provision appears to be to keep effective control of the subject in dispute so as to prevent the contesting parties from creating a breach of the peace in their attempts to obtain physical possession . . . . A mere restraint on alienation would generally be of no use in preventing a breach of the peace, and this is the object with which section 145 is enacted. In order to keep possession a Magistrate must ordinarily act through some agent appointed by him in this behalf."

The following is the most relevant observation by Mackney, J. in Maung Saa U v. Maung Lu Gale (A I R 1538 Rang. 88):‑

"The word "attached" merely means to bring under the control of the Court, and the Magistrate is entitled to effect that object in any way which is within his power. Certainly, the appointment of a receiver with the powers of a receiver under the Code of Civil Procedure is not one of those ways, because unless that power is expressly given, a Magistrate cannot exercise it . . . .

Whilst I thing it advisable not to employ the term 'receiver' owning to the possibilities of misunderstanding that may arise, yet I think that it is clear that if the Magistrate's attachment is to be effected he must put some person into possession of the property who will have authority to maintain his possession."

The next observation relied upon was by Sankaran Nair, J. in Srinivasa Pillay v. Sathayappa Pillay (14 1 C 759=13 Cr. L J 295) which is as follows:‑

"The receiver appointed under that section 146 has got the power of a receiver appointed under the Code of Civil Procedure. He is invested by law with powers which he can exercise himself. But the receiver appointed under this section 145 may not have such powers. He will only be an agent or servant of the Magistrate acting under his order. It is an administrative order passed for the Management of property which he has attached. The right to attach carries with it the right to take the necessary steps for its custody and Manage ment."

The last observation of the series relied upon in that case was by Mukherjea and Biswas, JJ. in Faizur Rahman v. Sheikh Ladley (42 C W N 351). It reads thus:

"Strictly speaking, it is a matter which is arguable whether or not a receiver' can be appointed in any proceeding under Chapter 12 except under section 146. It seems to me, however, that even though a receiver may not be appointed consequent on an attachment made under the last proviso to sub section (4) of section 145, a Magistrate is competent to make suitable arrangements for the custody of the property attached."

On the basis of all the foregoing authorities, the learned Judges with whom I am in respectful agreement, reached two conclusions firstly that the provision contained in subsection (8) of section 145 was quite independent of the second proviso to subsection (4) and, secondly, that having attached a property under section 145 (4) a Magistrate was competent to pass an order for its custody or Management. It was observed:‑

"Subsection (8) is a special provision for cases where there is crop or other produce which is subject to speedy and natural decay. There may be cases in which there is no attachment under the proviso to subsection (4) and yet some order of the Magistrate is necessary if there is any crop or other produce of the land which is subject to speedy and natural decay. Subsection (8) is primarily intended to provide for such cases. If the land with the crop is attached, the Magistrate has full powers to deal with the crop apart from the provisions of subsection (8)."

It was concluded:‑

"These decisions clearly establish that a Magistrate attaching the subject of dispute under section 145(4), Criminal Procedure Code is competent to make suitable arrangements for the custody of the attached property. In the present case the Magistrate in the presence of both parties settled the attached land with the highest bidder for Rs. 5,000 for one year. It cannot be doubted that this is a suitable arrangement."

The application was dismissed on the above view of the matter.

12. Having regard to the above authorities, I am satisfied that the use of the word "receiver" by the learned Magistrate in respect of the Girdawar and the Patwari may be condoned as not being vitiative of the proceedings. It is abundantly clear to me that although the word "receiver" was actually used by the learned Magistrate the appointment of the two Lambardars in the first instance later substituted by the Girdawar and the Patwari was made only with the object of handing over to them the custody, Management and control of the attached property and as such the appointment may be deemed to have been made as an inevitable measure, consequential to the attachment of the property under the second proviso to section 145 of the Code. The use of the word "receiver" may only be regarded as a misnomer for manager or a supardar, which in the light of the authorities discussed above would not per se be good enough to invalidate the impugned order.

13. Another argument addressed by the learned counsel in support of his contention that a receiver could only be appointed under subsection (2) of section 146 of the Code was that the only form prescribed in regard to a warrant of attachment is one under section 146 of the Code, there being no separate form prescribed for the purpose of attachment under section 145 (4). The factual correctness of this position cannot be disputed. There is only one warrant of attachment existing in Schedule V of the Cr. P. Code prescribed under section 146 ibid. Although the earlier section 145 also refers to attachment in a case of emergency, the fact that two distinctly separate forms of warrants of attachment have not been prescribed in the aforesaid Schedule, one under section 145 and the other under, section 146 would rather tend to suggest that in fact there is no differences in the two forms of attachment. Of course, it would have been more appropriate if section 145, Cr. P. C. were also mentioned along with section 146 in Form XXIII prescribed for a warrant of attachment existing in Schedule V of the Code. Since an attachment in the event of an emergency has been specifically provided for in the second proviso to section 145, Cr. P. C., the mere non‑existence of a relevant form with specific reference to section 145, Cr. P. C. prescribed for a warrant of attachment under this section cannot by any stretch of imagination, be so construed as to render this provision nugatory and the only reasonable inference that can be drawn from this is that in point of fact Form XXIII of a warrant of attachment has been prescribed under both the sections, namely, 145 and 146 of the Code. Be that as it may, this does not improve the case of the petitioners.

14. The upshot of the discussion, therefore, is that there is nothing wrong with the appointment of the Girdawar and the Patwari for the custody, Management and control of the attached property. The mere fact, therefore, that the word "receivers" has been used in this regard would not invalidate the impugned order.

15. In consequence the petition fails and is hereby dismissed. The record of the case may be immediately sent back to the learned Magistrate.

16. Before parting with this case, however, I would like to observe that if the learned Magistrate had been slightly more vigilant and cautious in making his orders, all these avoidable complications could have been easily obviated.

Petition dismissed.

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