DAYAWATI Vs. STATE OF U P

JUDGEMENT

(1.) KRISHNA Kumar, J. This revision v has been filed against the order dated 13-1 -2000 whereby application of the revisionist for releasing the properly in her favour was rejected by the learned Chief Judicial Magistrate. The learned counsel for the revisionist contended that the ac cused is un-married and whole property belongs to father of the accused named Sheo Nandan. It may be stated that al though several articles were attached but father did not file any application for releasing of the same. The application was moved by the revisionist who is mother of the accused for releasing of the cattle on the ground that the said catties were her "sridhar". It was also alleged that because of the attachment there is probability of the reduction in the produce of the milk. Learned counsel for the revisionist con tended that the learned lower Court did not hold that the property did not belong to revisionist and had rejected the applica tion on the ground that if the property is released, the accused shall not surrender before the Court. However, from the order of the leaned lower Court, it is clear that one affidavit was given by Daya Ram son of Phool Singh who told the Investigating Officer that he had not given any such affidavit, learned lower Court must have summoned the person concerned to verily the contents of the affidavit. The learned lower Court could not believe the state ment given by the Investigating Officer. It may be stated that in the affidavit of the Investigating Officer it was mentioned that the accused was alone heir of the movable and immovable property of his father and mother. However, in the life time of the father and mother the accused cannot be owner of the said property and it was to be decided by the learned lower Court whether the attached property belongs to accused or not.

(2.) CONSIDERING the above facts, the learned lower Court has committed il legality in not deciding who is actual owner of the attached properly and therefore, the order dated 13-1-2000 is set aside. The learned lower Court is directed to decide the matter afresh after holding inquiry or recording the evidence to determine as to who is actual owner of the attached property and shall pass afresh order.