KANIZ FATIMA BIBI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) On 31st May, 1960 Station Officer Nasirabad, district Rae Bareli submitted a report to the Sub-Divisional Magistrate Saion reporting that as usual the Urs fair was to be held from 1-6-1960 to 6-6-1960 at the Dargah Sharif situate at Jais, police station Nasirabad and that there was an apprehension of a breach of the peace in regard to the offerings made at the Dargah in connection with this Urs. This report for action under Section 145 of the Code at Criminal Procedure was submitted to the Sub-Divisional Magistrate, who, on perusing the report, was satisfied of the existence of an apprehension of a breach of the peace and passed an order under Section 145 (1) of the Code of Criminal Procedure on 2-6-1960. in view of the emergency, the learned Sub-Divisional Magistral" further directed that the said Dargah Sharif along with cash, sweets and other offerings be attached and placed in the custody of five reliable persons who were directed to keep accounts of tna property and the donations received at the Urs.

(2.) This order was complied with on 3rd June, 1960 and the attachment was made in the presence of the parties concerned and persons named in the attachment report. Five persons named in the report were appointed Supurdars. This attachment order does not indicate from whose possession the property was attached. Proceedings were then taken in the Court of the Sub-Divisional Magistrate concerned and two persons were added as parties on their applications dated 13-6-1960 and 29-7-1960 respectively. On 30-6-1960 the Sub-Divisional Magistrate tinany withdrew the attachment. The order reads:

(3.) Against the order of the Magistrate dated 30-6-1961 a revision application was filed in the court of the Sessions Judge, Rae Bareli by Srimati Kaniz Fatima urging that there was no written statement by either party on the record, no documentary or oral evidence to warrant any conclusion as regards ownership of the attached property, that on receipt of the file from the High Court a further report as regards the existence of an apprehension of a breach of the peace was called for which was not justified inasmuch as the property being in the possession of the receivers neither party could dare commit any breach of the peace and that on 30th June, 1961 the petitioner requested that the proceedings under Section 145 of the Code of Criminal Procedure be continued but the learned Magistrate on receipt of the police report dropped the proceedings. The grounds taken in the revision application Were that the Sub-Divisional Magistrate was wrong in dropping the proceedings under Section 145, Code of Criminal Procedure, that the Magistrate was wrong in releasing the property in favour of the person from whose possession it was attached as this amounted to a delegation of his powers which was not contemplated by Section 145 of the Code of Criminal Procedure and that after dropping the proceedings under Section 145 of the Code of Criminal Procedure, the Magistrate was empowered only to pass incidental orders and could not direct in whose favour the property was to be released. This revision application was disposed of by the learned sessions Judge by his order dated 24-11-1961. It was contended that the order of the Magistrate amounted to a delegation of powers to the Station Officer and this was illegal. The learned Sessions Judge held that all that Magistrate had done was that instead of making it clear in his order as to who was the person to whom the property was to be returned he left it to the Station Officer to return the property to him and that this did not amount to any illegality. The learned Sessions Judge appears to have been under the impression that the memorandum of attachment (Fard Qurqi) dated 3-6-1960 would indicate the persons from whose possession the property was attached. He accordingly rejected the revision application.