BACHARAM Vs. STATE AND ANR

JUDGEMENT

(1.) The applicant has come forward with a prayer that the Immovable property in question be restored to his possession. The facts of this case may be briefy stated. In a proceeding under Section 145, Code of Criminal Procedure, the Magistrate passed a preliminary order and also directed an emergency attachment under Section 146, Code of Criminal Procedure, further observing that an be is unable to dispose of the matter, the parties may have their right of possession determined by a court of competent civil jurisdiction. It would appear that the police made a report that attachment has been made on 18-1-1981. It is also not disputed that meanwhile any Supurdar was not appointed. On 20-1-1981 the revisional court passed an order, while admitting the revision, that the operation of the Magistrate's order under Sections 145 and 146 Code of Criminal Procedure is Btayed. Thereafter no Receiver was appointed, as further proceedings remained stayed.

(2.) Some interesting developments took place later. A report was lodged in the police that the present applicant has broken open the lock placed by the police at the time of attachment and has taken wrongful possession. The police submitted a charge-sheet under Sections 188 and 488, IPC, against the applicant before the Chief Judicial Magistrate. The Chief Judicial Magistrate issued summons. To cut short, ultimately the matter went up in revision and the revisional court held that the entire proceedings before the Chief Judicial Magistrate were barred under Section 195, Code of Criminal Procedure, and actually it was the Magistrate, before whom the proceedings under Section 145 and 146 Code of Criminal Procedure, were conducted, who could launch a prosecution by filing a complaint and not any other court. The revisional court in that proceeding under Section 188 and 488, IPC, directed that moveable properties of the applicant be restored to him, but as regards the Immovable property the present applicant should approach the Sub-Divisional Magistrate, meaning thereby the Sub-Divisional Magistrate before whom the proceeding is pending. Under Section 195, Code of Criminal Procedure, it was the Magistrate alone who could have launched a proceeding under Section 188, IPC, and not any other court. So it was rightly observed that in the matter concerned the Sub-Divisional Magistrate be approached.

(3.) It is being urged that in the meanwhile the possession of Immovable property be restored to the applicant, as it was wrongfully taken from his possession by the police in the proceedings under Sections 188 and 488, IPC, when a report was lodged. I have considered that aspect. In fact, the crux of the matter is whether the property was in custodia legis under the attachment order of the Sub-Divisional Magistrate or not, passed in the proceedings under Sections 145 and 146, Code of Criminal Procedure. The police report is that the attachment order was executed Inasmuch as the police placed its lock after attaching the property. It la urged that attachment will not be complete without appointing a Receiver. I am unable to uphold this contention. Actually the moment the attachment is made and a lock is placed in pursuance of that attachment the property comes within custodia legis irrespective of any consideration whether Receiver could be appointed or not. I may also observe that the stay order granted by the revisional court would be effective from the date it was granted; and if an attachment was made already placing any lock, that would not be undone. When that is the position, the proper course is that the very Sub-Divisional Magistrate has to examine whether on 18-1-1981 attachment was affected by placing any lock or not. In fact, he will otherwise also necessarily have to do so for deciding whether it is expedient in the ends of justice to launch a prosecution against the applicant or not and whether actually there was a police lock in pursuance of the attachment order and the applicant thereafter broke open the lock or the position was otherwise and the applicant was in possession and was not in any way dispossessed by attaching the property and placing any lock.