PLJ 2013 SC (AJ&K) 305
Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J.
CH. GHALIB HUSSAIN and another--Appellants
MUHAMMAD SIDDIQUE and 8 others--Respondents
C.A. No. 39 of 2011, decided on 28.11.2012.
(On appeal from the judgment of the High Court dated 26.5.2011 in Application No. 10 of 2011).
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 145 & 561-A--Proceedings for attachment of property--Quashing of proceedings--Possession of the property was already regulated by Civil Court in civil suit by issuing interim injunction--Attachment order was challenged through revision petition before Sessions Judge but was dismissed--Parties were co-sharer in property--Question of--Whether any emergency exist or not--Apprehension of breach of peace--Validity--Magistrate while passing attachment order had not been bothered to adhere to statutory provision--Under statutory provision of S. 145, Cr.P.C. magistrate had either to pass attachment order after holding inquiry as was required--Neither police report, when considered, speaks of any emergency to attach property nor magistrate had applied his mind while passing attachment order--Without satisfaction of magistrate, after due application of mind and final opinion that case was one of emergency, attachment of property was unwarranted and unlawful--When magistrate had taken cognizance u/Ss. 107, 150 & 151, Cr.P.C., apprehension of breach of peace can be presumed to have been defused, attachment of property appeared not to be justified--Magistrate had passed attachment order without application of judicial mind and complying mandatory statutory requirement, which had been quashed by High Court--Appeal was dismissed. [Pp. 308 & 309] A, B, C & E
Criminal Procedure Code, 1898 (V of 1898)--
----S. 145--Civil Procedure Code, (V of 1908), O. XL--Attachment of property--Matter regarding title of property was subjudice before competent Civil Court--Validity--Civil Court under provision of Order XL, CPC is vested with powers of attachment of property and as compared to powers exercised by magistrate u/S. 145, Cr.P.C.--Power vested with civil and are much wider and comprehensive--For avoiding anomalous situation of conflicting orders, multiplicity of litigation, saving litigants from unnecessary trials and to protect parties from uncalled for embarrassment, if such demands either of the parties might apply and even Civil Court itself might take proceedings for attachment of property--Continuation of proceedings u/S. 145, Cr.P.C. appeared to be unnecessary and uncalled for. [P. 308] D
Mr. Khalid Rashid Chaudhry, Advocate for Appellants.
Sardar Ghulam Mustafa, Advocate for Respondents.
Date of hearing: 22.11.2012.
Ch. Muhammad Ibrahim Zia, J.--The captioned appeal with the leave of the Court has arisen from the judgment of the High Court dated 26.5.2011 whereby the application under Section 561-A, Cr.P.C, filed by Respondents No. 1 to 4 has been allowed and the orders passed by the learned Sessions Judge, Kotli dated 24.3.2011 and that of Magistrate first class, Kotli dated 8.2.2011 regarding the proceedings for attachment of property under Section 145, Cr.P.C., have been quashed.
2. Brief facts necessary for disposal of appeal are that on 7.2.2011, Respondent No. 2 and Appellant No. 1 filed separate applications for breach of peace at Police StationKotli. The S.H.O Police Station Kotli submitted a report under Sections 107, 145, 150 and 151, Cr.P.C, before S.D.M Kotli on 8.2.2011. The Magistrate, on the same day attached the disputed property and ordered the S.H.O. Police Station Kotli that while complying with the attachment order, appoint an impartial person as receiver. It is alleged that the learned Magistrate without application of judicial mind passed the order for attachment of the property in question on 8.2.2011 despite the fact that the possession of the disputed property was already regulated by civil Court in a civil suit by issuing an interim injunction. The attachment order was challenged through a revision petition before the Sessions Judge Kotli but the same was dismissed vide order dated 126.96.36.1991. Consequently, Respondents No. 1 to 4, filed an application under Section 561-A, Cr.P.C. in the High Court for quashment of the proceedings. The learned High Court, through the impugned judgment dated 26.5.2011 quashed the proceedings while accepting the application on the main ground as the possession of the disputed property has been regulated by the civil Court therefore, the order under Section 145, Cr.P.C. is not maintainable.
3. Ch. Khalid Rashid Advocate, the learned counsel for the appellants, at the very outset conceded that he has no cavil with the principle of law that if the matter of possession of a disputed property is regulated by the civil Court then any such proceedings under Section 145, Cr.P.C., are not maintainable. However, in this case, respondents filed a civil suit in the Court of civil Judge on 26.1.2011 and got issued an interim injunction in shape of maintenance of status-quo but later on, the trial Court, after hearing the parties, vide order dated 15.2.2011, vacated the same and appeal filed against this order before the District Judge on 22.2.2011 met the same fate vide order of District Judge Kotli on 20.9.2011. Thus, the civil Court has not regulated the matter of possession, hence, the impugned judgment has not been passed in proper manner,therefore, same is not maintainable. He stressed that the appeal merits acceptance.
4. While controverting the arguments of learned counsel for the appellants, Sardar Ghulam Mustafa Advocate, the learned counsel for the respondents, submitted that the matter of interim injunction is still subjudice in the High Court against the order of District Judge as the revision petition has been filed by the respondents on 19.11.2011. Leaving aside this aspect of the controversy, even otherwise, the order of attachment passed by the Magistrate is not sustainable as the same is passed without application of judicial mind. He submitted that according to statutory provision of Section 145, Cr.P.C, the property can only be attached if there exists any dispute regarding possession of the property and any of the party has been wrongfully dispossessed. In such state of affairs, if the Magistrate considers the case as one of emergency, he can pass such order. Whereas the police report, contains that both the contesting sisters are residing in the same house. The Magistrate has mentioned in the order that there is apprehension of quarrel among the parties, hence, the house is attached but this is not a valid reason for attachment. Specially, when the Magistrate has already initiated proceedings under the provisions of Sections 107, 150 and 151 of Cr.P.C. He also submitted that at the time of issuance of attachment order, an interim injunction was holding the field, therefore, submission of learned counsel for the appellants is not maintainable.
5. We have considered the arguments of the learned counsel for the parties and also gone through the record made available. Admittedly, the contesting parties are co-sharers in the property. The police report contains that both the contesting sisters Mst. Safeena Begum and Bushra are residing in the house. The police has not categorically mentioned the necessary facts that there is apprehension of breach of peace due to dispute of possession of the property rather it has been mentioned that as both the parties are co-sharers and they are determined to cause damage to the person and property. It also appears that on filing of this report without hearing of the parties or application of judicial mind whether any emergency exist or not, the Magistrate enlarged the parties on bail while proceeding under the provisions of Sections 107, 150 and 151, Cr.P.C and at the same time attached the property under Section 145, Cr.P.C.
6. It is amazing that the Magistrate, while passing the attachment order has not bothered to adhere to the statutory provisions. Under the statutory provisions of Section 145,Cr.P.C, the Magistrate has either to pass attachment order after holding inquiry as is required under sub-section (4). The only exception provided by the statute is that in case of emergency, pending decision under this section, he can attach subject of the dispute. The attachment order on the face of it speaks that it lacks even a single word regarding compliance of the statutory provisions. Neither the police report, when considered, speaks of any emergency to attach the property nor the Magistrate has applied his mind while passing the attachment order. The police, in the report has submitted that:--
Thus, without satisfaction of the Magistrate, after due application of mind and final opinion that the case is one of emergency, attachment of the property is unwarranted and unlawful. In view of the peculiar facts of this case, once a Magistrate has proceeded under the provisions of Sections 107, 150 and 151, Cr.P.C., and enlarged the arrested persons on bail, without determination of the question of emergency, immediately passing of attachment order, appear to be inconsistent with the spirit of law.
7. Admittedly, the matter regarding the title of property is subjudice before the competent civil Court from where finally rights of the parties have to be determined. According to the stated facts, it is also proved that on the date of passing the attachment order, the interim injunction issued by the trial Court was also holding the field. A civil Court also under the provisions of Order XL of the CPC, is vested with the powers of attachment of the property and as compared to the powers exercised by the Magistrate under Section 145, Cr.P.C., the powers vested with the Civil Court are much wider and comprehensive. Thus, for avoiding the anomalous situation of conflicting orders, multiplicity of litigation, saving the litigants from unnecessary trials and to protect the parties from uncalled for embarrassment, if such situation demands, either of the parties may apply and even the civil Court itself may take proceeding for attachment of the property. Hence, from this angle, in this case, continuation of proceedings under Section 145, Cr.P.C. appears to be unnecessary and uncalled for.
8. In such such state of affairs, when the Magistrate has taken cognizance under Section 107, 150 and 151 Cr.P.C. apprehension of breach of peace can be presumed to have been defused, therefore, the attachment of the property appears not to be justified. The Magistrate has passed the attachment order without application of judicial mind and complying the mandatory statutory requirements, which has rightly been quashed by the High Court; therefore, in our opinion, the impugned order of the High Court, suffers from no illegality or infirmity, thus, the appeal being without any substance is hereby dismissed.
(R.A.) Appeal dismissed