ATMA RAM Vs. HARISINGH AND ANOTHER

JUDGEMENT

(1.) THIS revision is directed against an order dated 14 -1 -1985 recorded by IInd Additional Sessions Judge, Saharanpur in Crl. Case No. 1024 of 1982. Despite revision of the list nobody has appeared for the applicant. Counsel Sri R. Rai has appeared on behalf of the respondents and argued the case saying that he alone is the counsel who will argue the case and not Sri A. Prakash whose cases have been adjourned till 3 -12 -1990.

(2.) THE facts giving rise to this revision is that there was some proceeding under Section 145 Cr.P.C. reported in Hari Singh v. Atma Ram 102 of 1982, before Sub -Divisional Magistrate, Deoband. In this proceeding he directed attachment of the property in dispute. With some hurried efforts the case was decided on 9 -9 -83 holding the possession of Sri Atma Ram and directing release in his favour. Hari Singh preferred a revision and this revision was allowed by the impugned order directing the remand and retrial. It also appears that some evidence was being recorded or has been recorded by the Magistrate on the issue of possession.

(3.) SECTION 145 Cr.P.C. itself lays down the procedure where a dispute concerning any land or water or the boundaries thereof is likely to cause a breach of peace. This section is a complete procedure in itself. There is no power of attachment with the Magistrate under this section. The power or authority to make the attachment has been given in Section 146 Cr.P.C. and it is available to the Magistrate only when there is the case (i) either of emergency or (2) if he decides that none of the parties was then in such possession or (3) if he is unable to satisfy himself as to which of them was then in such possession, of the subject of dispute. Unless there is a finding to any of these affects there is no occasion for attachment and once there is finding that the Magistrate is unable to decide by himself as to which party has been in possession he cannot re -entertain the evidence after making an order of attachment. Even this section itself directs that the Magistrate may attach the subject of dispute until a competent Court has decided the rights of the parties thereto with regard to the person entitled to the thereof. The attachment thus made, is to continue till there is a decision of a competent Court on issues of possession of right to hold the possession and there is only one exception by way of a provision that the Magistrate may withdraw the attachment at any time if he comes to the conclusion that there is no longer any likelihood of breach of the peace with regard to the subject of dispute, obviously having once made an order of attachment the Magistrate ceases to have any jurisdiction to decide the question of possession. This important aspect of procedure was not seen by the Magistrate and was also omitted by the learned Sessions Judge. In result, this revision should succeed but in a different way. The order passed by the learned Sessions Judge is set aside and the order of the Magistrate is also set aside with the observation that the attachment shall continue unless vacated or until decision of a competent Court or otherwise in accordance with law.