JAGDISH SINGH Vs. KRISHNA PAL

JUDGEMENT

(1.) S. R. Bhargava, J. This revision, under Section 397 Cr. P. C. is directed against judgment and order dated 4. 8. 88, passed by Sessions Judge, Bareilly in Criminal appeal under Section 454 Cr. P. C. allowing the appeal and remanding the case back to the Magistrate to make inquiry under Section 452 Cr. P. C. and pass order regarding attached house accordingly.

(2.) FACTS giving rise to this revision are that in respect of a house preliminary order under Section 145 (1) Cr. P. C. was issued and on the basis of imminent danger of breach of peace, house was attached under Section 146 (1) Cr. P. C. on revision preferred before the Sessions Judge, proceedings under Sections 145 and 146 (1) Cr. P. C. were quashed. A revision was preferred in the High Court against order of the revisional Court quashing the proceedings. But that revision was dismissed. After dismissal of the revision and without any formal enquiry the Magistrate sent letter to the station officer the police station concerned for releasing the house and delivering the possession to the revisionist Jagdish Singh. Against that Krishna Pal Singh preferred appeal before the Sessions Judge who held that the learned Magistrate ought to have made inquiry and determined who was in possession of the house at the time of attachment. Then according to his finding he should have passed order for release and delivery of possession. With the finding learned Sessions Judge allowed the appeal and sent back the case to the Magistrate for inquiry and order.

(3.) BUT the Sessions Judge has power to treat an appeal as revision or a revision, as appeal if filed within limitation for appeal revision as the case may be. In the instant case even if the Sessions Judge proceeded to decide the matter brought before him as appeal, would not make any difference. When proceedings under Section 145 (1) followed by attachment under Section 146 (1) on the ground of imminent danger of breach of peace, are dropped or quashed, it cannot be forgotten that the property remains in the custody of the Magistrate and for washing of his hands the Magistrate is bound to bring proceedings to a logical end. Mere lifting of attachment would not relieve him of his accountability to the person from whose possession property was attached. Attachment under Section 146 (1) Cr. P. C. brings the situation of custodia legis. After attachment the property remains in the custody of the Court but that custody is on behalf of the person from whose possession it was attached. In the cases of Bhagwati Prasad v. Mahenara Nath Misra, 1979 U. P. Crl. LR 570 and Murli v. Paras Nath Shukla and another, 1982 ACR 23, it was held that after dropping of proceedings under Sec. 145 (5) Cr. P. C. the Magistrate can take advantage of Section 452 Cr. P. C. to deliver possession to the person found by him to be in possession at the time of attachment, after inquiry. In this revision only this much need be added that for bringing proceedings to logical end the Magistrate should make inquiry akin to Section 452 Cr. P. C. and find out the person or party in possession at the time of attachment and deliver back the possession of the property to him.