MAHANTA AND ANOTHER Vs. STATE AND ANOTHER

JUDGEMENT

(1.) THIS revision has been heard at admission stage and is being disposed of finally.

(2.) REVISION has arisen from proceedings under Section 145 Cr.P.C. It is now not disputed that in a civil suit on 29.1.88 an exparte injunc­tion restraining opposite party No. 2 from interfering in possession of the revisionists was passed. On 23.2.88 with respect to some property S.O.M. passed a preliminary order under Section 146 (1) Cr. P.C. and on the same day passed order of attachment on the ground of emergency under Section 146 (1) Cr.P.C. It was brought to the notice of the S.D.M. that a civil suit is pending in which injunction has already been issued. Then by order dated 14.6.88 the S.D.M. Dropped the proceedings under Section 145 Cr.P.C. and directed the Station Officer of the police station concerned is maintain peace. There war no order regarding attached property. It is now further not disputed that the police released the property in favour of the revisionists. Opposite party No. 2 applied to the S.D.M. that he nay adjudicate on the point of possession and may deliver possession to him. Learned S.D.M. dismissed the application. Thereafter opposite party No. 2 went up in revision before the Sessions Judge who directed the S.D.M. to re-attach the property and decide right to possession and then deliver the property to the party found entitled to possession.

(3.) WHENEVER there is an order of dropping of proceedings after attachment of the pro­perty, the S.D.M. should pass clear order about the attached property. Unless consequential order regarding the attached property is passed, the parties may either be forced to approach the police and get possession in blendestine manner or to approach the court. In making order for attached property, the S.D.M. may follow in adjudication of civil suit between the parties. In the instant case it is evident that there was no conse­quential order regarding attached property. Hence the Magistrate is bound to pass con­sequential order about attached property. Before making consequential order he may reattach the property which has been released by the police. But the Magistrate has to exercise discretion on the facts and circum­stances of the case. If the S.D.M. finds that the release by the police is only formal in nature and that the party concerned has been in possession on account of any adjudica­tion by the civil court, he may not reattach the property.