This is a Revision Petition filed by Gehlo under section 439 read with section 561-A of the Code of Criminal Procedure. The respondents in this petition are (1) Rehmatullah and (2) the State. By this petition the petition--tioner has sought two reliefs; firstly, that the proceedings initiated against him by the respondent No. 1 Rehmatullah under section 145, Cr. P. C. Before the learned Civil Judge and F. C. M., Tando Muhammad Khan be quashed and secondly, that the interim order of attachment of the shop in dispute passed by the same learned Magistrate under section 145(4).
Proviso (2) of it be vacated.
2. The facts which are relevant and give rise to this petition briefly are these. The respondent No. 1 Rehmatullah filed an application under section 145, Cr. P. C. Before the learned Civil Judge & F. C. M., Tando Muhammad Khan against the petitioner on 15-11-1971. The dispute related to a shop situated in the Municipal Committee Market of Tando Muhammad Khan. On the date of filing this application under section 145, Cr. P: C. The learned said Magistrate ordered that statement of the applicant who is respondent No. 1 herein be recorded which was to be under section 200, Cr. P. C.
This statement on oath was, accordingly, recorded. In this statement the case of the respondent No. 1 Rehmatullah is that about 25 years ago shop No. 16, in the Municipal Committee Market, Tando Mohammed Khan was given to him on rent by the Municipal Committee. The petitioner Gehlo Waghri was, according to him, his servant and a Hari on the shop in question since 14 years before' he was giving that statement. The petitioner, he alleged, used to sell vegetables etc. On this shop on behalf of the respondent No. 1. This statement further shows that short time before this statement was made the respondent No. 1 came to know that the petitioner Gehlo herein had misappropriated his Rs. 500 and the respon--dent No. 1 came to know of it when he took account of the shop from him. Due to this misappropriation as alleged the respondent No. 1 dispensed with the services of the petitioner and he demanded keys of the shop from the petitioner. According to respondent No. 1 then, the petitioner got irritated and became angry with him. Thereupon Allahdino and Karam A.I intervened and they averted the dispute. The respondent No. 1 then added that the petitioner said at that time that if he (the respondent No. 1) came to the shop he would not be spared by the petitioner. According to the respondent No. 1 he used to pay rent to the Municipality as he was its tenant. He also produced some rent receipts. He further alleged in this statement of his that in case the shop is not sealed there was apprehension of breach of peace and that there would be encroachment of his possession meaning thereby of the shop. After this statement under section 200, Cr. P. C. Was recorded the learned Magistrate passed the preliminary order on 16-1- 1971, the day the statement under section 200, Cr. P. C. Was recorded, under section 145(1), Cr. P. C.
On the same day application under the second proviso to subsection (4) of section 145, Cr. P. C.
Was made and this proviso is to the following effect:- "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."
1n this application attachment of the shop in dispute was prayed and the grounds therefore were shown in paragraphs 5 and 0 of this application Which fire to The following effect:- "5. That the opponent being annoyed on removal from service, has created situation of lessor and breach of peace is likely to take place.
(6) Hence it is prayed till final disposal of application under section 145, Cr. P. C. The shop may be attached so that the likelihood of breach of peace may be avoided. Hereby emergency is created."
3. Upon this application the learned Magistrate passed an ad interim order of attachment in the following words:- "Heard Advocate. Seen receipts of Municipality showing applicant as tenant since long. The applicant apprehend immediate danger of breach of peace if shop is not attached. I find the case one of emergency hence shop is attached which is subject matter of dispute pending decision of the application.
(Sd.) M. A. Siddiqui 16-11-1971.
Civil Judge & F. C. M., Tando Muhammad Khan."
Thereafter the written statement of the claim of the petitioner as respects possession of the shop in dispute was filed by him in the lower Court on 23-12-1971. On the same date he also filed objections to the application for interim attachment of the shop in dispute under second proviso to sub-- section (4) of section 145, Cr. P. C. In these objections briefly 'speaking the case of the petitioner was that he was not the servant or hart of the respondent No. 1 Rehmatullah but he was in physical possession of the shop in dispute in his own right and was selling vegetable in the shop which belonged to him. He also denied that there was any apprehension of breach of peace nor such a situation had ever taken place. He once again asserted his continuous physical possession of the shop in dispute. Other objections need not be referred to as they are not relevant. Upon these objections the learned Magistrate passed an order on that very date--R & R for arguments on 28- 12-1971.
(Sd.) M. A. Siddiqui, Civil Judge & F. C. M., Tando Muhammad Khan".
4. The learned Magistrate then heard the arguments of counsel for both the opposing parties before him and passed an order confirming the ad interim attachment of the shop in dispute which order he had made earlier on 16-11-1971 as mentioned above. This last mentioned order is dated 6-1-1972. Thereafter, the case made some progress before him and the evidence of the respondent No. 1 Rehmatullah who was the applicant in the proceedings under section 145, Cr. P. C.
Before him was recorded. After this stage the case has been brought to this Court by way of revision as already mentioned above. I have also said that two reliefs were claimed in this revision petition but during the course of arguments the learned counsel for the petitioner dropped the prayer of the quashment of the proceedings under section 145, Cr. P. C. Pending before the lower Court against the petitioner and be only prayed for the order of the interim attachment of the shop in dispute by the lower Court to be vacated as according to him there was no material before the learned Magistrate to make out a case of emergency as required by the said second proviso of subsection (4) of section 145, Cr. P. C, which proviso has been reproduced above.
5. The petition was resisted by counsel on behalf of the respondent No. 1 and counsel for the State, did not support the ad interim attachment order of the lower, Court as counsel said that there vas no material before the learned; Magistrate which justified cry ad interim attachment of the shop in dispute as a case of emergency.
6. When the ad interim order for attachment was passed by the learned lower Court on 16-11-1971 there was before this Court the material by way of application under section 145, Cr. P. C. By the respondent No. 1 and his statement under section 200, Cr. P. C. On oath. It will be seen from the second proviso to subsection (4) of section 145, Cr. P. C. That a Magistrate First Class can pass an order of attachment of the subject-matter in dispute at any stage when the case is one of emergency. So what is to be seen here in the instant case is whether there really existed emergency in the matter which required prompt action by the learned lower Court by way of ordering interim attachment of the shop in dispute and thereafter confirming the same order which order runs into two hand written pages as already said. At the time of passing ad interim order of attachment of the shop in dispute there was only byway of evidence the statement of the respondent No. I on oath under section 200, Cr. P. C. Before the lower Court. In this statement what I can find which might relate to the facts as respects the existence of emergency are the following statements in this statement:-- "Recently I carne to know that the opponent had misappropriated Rs. 500 when the account of the shop were observed. At this I dispensed with his services and I demanded keys from him. At this he got irritated and became angry with me. Allahdino and Karam A.I intervened and they averted the dispute. After this he says that if I would go there he would not leave me."
The above recital of facts in the statement under section 200, Cr. P. C clearly go to show putting the case of the respondent No. 1 at best, that the petitioner became angry with the respondent No. 1 when his services were terminated and keys were demanded from him by the respondent No. 1 and the petitioner said to the respondent No. 1 that if he would go there, mean--ing to the shop, he would not be spared by the petitioner. In my opinion, this material was too scanty and insufficient to lead the learned Magistrate to the inference that thereby there was a situation of emergency of the case created and, therefore, he should take immediate action by ad interim attachment of the shop in dispute. In fact on his own showing the respon--dent No. 1's case is that the petitioner is in occupation of the shop and, according to him, the petitioner was selling his vegetables thereon.
The petitioner being in occupation of the shop in dispute unless the respondent No. 1 went to the shop and demanded keys of the shop or vacant possession of it there would arise no likelihood of existence of breach of peace or any breach of peace whatever. So far, the petitioner himself is concerned in such a situation he would not take such an action which will result in breach of peace because he was already in occupation of the shop in dispute. There--fore, the position boils down to this that unless the respondent No. 1 by his wrongful act by going to the shop in dispute and demanding keys and possession thereof from the petitioner did so, there would be no likelihood of existence of breach of peace. That means it was upto the respondent No. 1 to cause any breach of peace if at all, as be would be disposed to it being the aggrieved party. Obviously, the respondent No. 1 by such wrongful act of his cannot ire allowed to take advantage of it by obtaining as order of attachment of the shop in dispute in his favour. If be had any grievance still he can knock the portals of Court of Civil Law and there got the whole dispute decided for possession of the disputed shop between the parties.
7. The above position and I find never changed even after the stage of recording the statement under section 200, Cr. P. C. As thereafter the only material that the respondent No. 1 had brought on record was his applica--petition for interim attachment of the shop in dispute under proviso (2) of subsection (4) of section 145, Cr. P. C: and in this application paras. 5 and 6 are material which relate to the question of any emergency existing in the matter. These paras. Are as follows:- "(5) That the opponent being annoyed on removal from service, has created situation of lessor and breach of peace is likely to take place.
(6) Hence it is prayed till final disposal of application under section 145, Cr. P. C., the shop may be attached so that the likelihood of breach of peace may be avoided. Hereby emergency is created."
It will be seen from both the paras that the first one merely says that the petitioner was annoyed on removal from service and he is alleged to have created the situation of lessor and further that breach of peace was likely to take place. The last mentioned phrase is merely borrowing the recitation of the words of section 145, clause (1), Cr. P. C. And it does not factually as well as materially advance the case as regards the question of emergency. The second para., above- mentioned, barely states at the end that emergency was created without showing any grounds in support of it. Obviously, this additional material as contained in paras. 5 and 6 just mentioned above did not improve the case of the respondent No. 1 for interim attachment of the shop in dispute from what it was at the stage of ad interim attachment of the shop in question. The learned Magistrate in his order confirming the ad interim attachment of the shop in dispute, inter alia, which is relevant has observed as under:- "All these documents show continued possession of applicant; and hence these circumstances suggest that when possession of applicant is denied by the opponent the dispute of the shop comes in picture which can lead the party to come to clash due to dispute over shop, Hence by sealing the shop as an urgency the very apprehension has been avoided. Under such circumstances it is just and proper if shop remain attached during the pendency of this proceeding."
From this observation of the learned Magistrate it is not clear as to which party would be led to come to clash due to dispute over shop as he has used the singular word `party' and not `parties'.
Obviously, in my opinion, this party would be the respondent No. 1 himself, who is not admittedly in occupation of the shop in dispute and it is he who is likely to commit tire breach of peace by disturbing the occupation of the petitioner. 'The respondent No. 1, as already stated by me above, cannot in these circumstances, be allowed to take advantage of his own wrong. I am fortified in this view of the inference by certain admission of the respondent No. 1. These admissions have been made by him in his cross-examination while his evidence was recorded in the proceedings before the lower Court. He stated in his cross-examination:-- "We did not tally in between the period of quarrel before tiling of this application. I did not go to opponent in between this period at the chop". The fact that the petitioner wants to settle this dispute by due process of laws is also abundantly clear by the fact that he has filed the present revised petition in the High Court for getting the interim attachment order set aside and which also shows that he does not want to take the law in his own hand.
8. In fact, in my opinion, the danger of breach of peace is highly likely on the side of the respondent No. 1 in the circumstances of the present case as shown above and the learned Magistrate who deals with the case will be well advised to take proceedings against the respondent No. 1 under section 107, Cr. P. C.
9. The learned counsel for the respondent No. 1, inter alia, has sub--mitted that order of interim attachment of the shop was a discretionary order and, therefore, it should not be set aside in the present proceedings. I am afraid I do not find myself in agreement with him because even the discretion in passing discretionary order is to be exercised judicially and not capriciously or arbitrarily. In the instant case as the facts discussed by me above will show that the judicial discretion in passing the interim attachment order of the shop in dispute has not been passed judicially on the facts as can be found from the material on the record.
10. Next, the learned counsel for the respondent No. 1 argued that the learned Magistrate need not give reasons for passing an order of interim attachment in a case of emergency, therefore, his order without being given any reasons therefore which is not a fact as he has according to him given reasons for it, was a valid one and should not be interfered with in this revision. In support of his contention he cited the decision in the case of A. Q. Shaukat and another v. S. M. Jaffer (PLD 1966 Lah. 809), wherein his Lordship who wrote the judgment, inter alia, observed as under:- "Unlike subsection (1) of section 145, Criminal Procedure Code which makes it obligatory on the Magistrate to make an order in writing stating the grounds, of his being satisfied about the breach of peace, there is no such obligation attached in the second proviso to sub--section (4), once, the Magistrate is satisfied regarding the existence of a dispute likely to cause a breach of peace concerning any land or water or boundaries thereof within the local limits of the jurisdiction, he can move in the matter in the manner provided in subsection (1) of course, stating the grounds of his being so satisfied. It might be a case of emergency at the very outset, or might subsequently develop into one. If it had been the intention of the Legislature to make obligatory on the Magistrate the statement of grounds regarding existence of emergency, there was nothing to prevent it from saying so, as was done in subsection (1). It is not, therefore, at all necessary for the Magistrate to give reasons to show that an emergency did exist."
No doubt this contention of the learned counsel for the respondent No. I is correct but all the same it is a necessary element that the discretion exercised by the learned Magistrate in the lower Court ought to have been exercised judicially and not capriciously or arbitrarily without the foundation of necessary facts on which it could be so exercised. Thus, in my opinion, the foundation of facts on which the learned Magistrate in the lower Court could pass the interim attachment order is entirely lacking in the instant matter and the fault lies for any dispute with the respondent No. 1 who ought to be, in my opinion, and I repeat, proceeded against under section 107, Cr. P. C.
11. For the foregoing reasons I vacate the ad interim order of attach--ment of the Shop in dispute and order that the occupation of it shall be restored to the petitioner forthwith. The further proceedings under section 145, Cr. P. C. Will take their own due course.
12. Before closing I like to mention that the learned Magistrate in the civil Court in his order confirming the ad interim attachment of the shop in dispute dated 6-1-1972 has expressed a clear finding that from all the documents produced by the respondent No. 1 it was clear that he was in continued possession of the shop, therefore, in my opinion, he has pre--maturely expressed a finding regarding the actual position of the shopping dispute which is the very material to be decided in the proceedings under section 145, Cr. P. C, For this reason, therefore, I would order that the learned District Magistrate, Hyderabad will do well by transferring this case from the file of the Civil Judge & F. C. M., Tando Muhammad Khan to any other competent Court of law at that place in order to avoid any prejudice to the petitioner by the said learned Magistrate. Copy of this order be also scat to the District Magistrate, Hyderabad for compliance with the above direction at an early date. I also further order that the Magistrate who will after the transfer of the case deal with the proceedings under section 145. Cr. P. C. Should dispose of these proceedings within two months of the receipt of the R & P of the case by him as long time has already elapsed on account of the pendency of the proceedings since before.