RAM SRI Vs. DHANPAT

JUDGEMENT

(1.) THIS application under section 482 Cr.P.C. arises out of proceedings under section 145 Cr.P.C. in which a preliminary order was passed on 31st May, 1976. Subsequently the case proceeded and parties were directed to file their written statements and produce evidence in support of their respective claims. Ultimately on 22-4-1977, the Magistrate being unable to decide as to which party was in possession of the property in dispute on the date of the preliminary order, directed that the property be attached till the parties get their rights adjudicated upon by a competent court. THIS order was obviously passed under Third part of section 146 (1) Cr.P.C. ft appears that subsequently a revision was filed against this order before the Sessions Judge, who on 23rd April, 1976 directed stay of the operation of the order of attachment. Before the order of the Sessions Judge, could be communicated to the court below, it is clear from the documents on the record that the possession of the disputed property was already handed over in the supurdagi of Sarva Sri Nand Kishore and Resham Singh. It appears that since the order of the Sessions Judge staying attachment became infructuous, with the result that it could not be carried out, the latter took this as an insult to the exercise of his authority, and he passed another order directing redelivery of possession of the prqperty to the second party. There can not be the slightest doubt that this order passed by the Sessions Judge directing redelivery of the property was wholly an illagal order. The law is very clear that the stay order only takes effect from the time that it is actually communicated to the court below and if prior to its communication the order of the trial court is already executed, then there is no reason why the Judge should feel worried and attempt to exercise powers which he does not possess in passing an illegal order of redelivery of possession. However, it appears that the revision filed before the Sessions Judge was ultimately dismissed on 18th August, 77. The property was again got attached by the Magistrate on 31st January 78. Again a revision was filed against this order, which too was dismissed on 15th June 78. It is not necessary for me to go on multiplying un-necessary facts, which have no bearing with the question which has arisen now at this stage.

(2.) IT appears that on 26th July, 1978 Dhanpat and others moved an application before the Magistrate that there was no apprehension of breach of peace between the parties and that they were in possession of the disputed property. IT is also mentioned that civil proceedings had been instituted and in that court Smt. Ram Sri had admitted (sic) affected on 311-1-1978 be withdrawn and the proceedings be dropped. The Magistrate again called for a report from the police and this application which was submitted on 27th July, 1978. The report was to the effect that there did not exist any apprehension of breach of peace. The Magistrate after hearing the parties passed an order on 17fh October, 78 by which he drew the attachment order passed by him earlier under section 146 (1) Cr. P. C. and directed that the aggrieved party should seek his remedy in a competent court of law.

(3.) IN my opinion, the interpretation which is sought to be put upon the proviso is not possible to accept. As I have mentioned earlier, also three types of attachment are contemplated under section 146 Cr. P. C. One is temporary attachment, or what is termed as an emergency attachment, that enures only till such time as the Magistrate finally decides the question of the nature of possession of the. parties and ultimately passes an order delivering the possession to one of them whom he holds to be in possession. The second type of attachment is that where the Magistrate decides that none of the parties are in possession and the third type of attachment is that where the Magistrate is unable to decide as to whiich party is in possession. IN the first case, the jurisdiction of the Magistrate continues inspite of the emergency attachment. Therefore, so long as the proceedings under section 145 Cr. P. 0. have not reached their final stage, if any question is raised by either of the parties to the proceedings, that there is no apprehension of breach of peace, it becomes the duty of the Magistrate under the proviso to consider that question and to decide it before proceeding to give a final decision. But when be passes the second or third type of orders, there can be no doubt that the intention of the legislature was that the jurisdiction of the Magistrate should seize at the stage where such an order is passed. IN either of those two cases, the Magistrate keeps the property under attachment, so that the parties may approach the competent Civil Court for a final adjudication of their rights. He has no power left to revive those proceedings and to pass any order in connection therewith, whether it be for recommencing the proceedings, or for dropping the proceedings. He becomes functus officio after he passes an order of second or third type. The civil court where the proceedings are pending can be approached by the parties for getting suitable orders. The Magistrate can not proceed thereafter because he has already washed his hands off the case by his inability to decide the question of possession and the consequent order of attachment.