PANNALAL Vs. DEVIRAM

JUDGEMENT

(1.) THIS revision is at the instance of the parties in proceedings under section 145 of the Code of Criminal Procedure, seeking interference with the order made by the Sessions Court in revision directing that the possession of the property in dispute be handed over by the police to the party from whose possession it was attached despite being aware of the fact that from the memo of attachment it was not clear as to from whose possession the property in question was attached. Thus, the challenge, in substance, was that the order impugned is vague and will result in various complications, if it is allowed to stand. It was contended that the direction given to the Police to return the property to the party from whose possession it was attached without any specific finding as to which was the party from whose possession the attachment in question was made, was manifestly unjust.

(2.) FROM the perusal of the record of the proceedings under Section 145 Cr.P.C. in the Court of the Sub -Division Magistrate, Karera. It appears that initially on being satisfied that there was a dispute relating to possession of immoveable property likely to cause breach of peace the SDM made an order under sub -section (1) of section 145 Cr.P.C. The contesting parties were noticed. They filed their reply, affidavits, etc, They also availed of the opportunity to examine witnesses. Witnesses were examined for both the sides. The case was closed for hearing arguments. Surprisingly, on the date of argument, it was suggested that there was no more any apprehension of the breach of peace and as such, the proceedings be dropped. The SDM dropped the proceedings without making any order about restitution of the property under attachment. A revision was preferred before the Sessions Judge by the non -applicants. The Sessions Court upheld the aforesaid order by observing that when subsequently there was no apprehension of breach of peace, the proceedings under section 145 Cr.P.C. could be dropped. The Sessions Court, however, further directed that the property in dispute comprising of 33 Khasra numbers be returned to the party from whose possession it was attached. The Sessions Court, however was aware of the fact, as it mentioned in para 10 of the order impugned, that the Supurdnama prepared on attachment did not make it clear as to from whose possession which survey -number was attached and placed in tile custody of the Supurddar. Despite being aware of this position, the direction given by the Sessions Court was that the police officer shall return the disputed property to the party from whose possession it was attached. 3. After hearing the learned counsel appearing for both the sides, this Court is of the opinion that the learned SDM failed to exercise the jurisdiction vested in him. He had omitted to pass necessary directions for restoring status quo ante after the attachment ceased to be effective. No doubt, the SDM could cancel the preliminary order, on being satisfied that no dispute giving rise to breach of peace was any more in existence. In that case he could also stay all further proceedings. But, while doing so, in such cases where there has been already an attachment made on the ground of emergency as contemplated by section 146 (1) of the Code and where it is possible to find out as to which party was in possession at the time of attachment, he has to give .suitable directions for restoring the property attached to such party. In the present case, both the parties had already adduced evidence. The preliminary order under sub -section (1) of section 145 happened to be cancelled in accordance with the provisions of sub -section (5) of section 145 on the last date of hearing. It is true that on the cancellation of the preliminary order, further proceedings for declaring a particular party to be in possession on the date of the preliminary order or two months next before the date of report or complaint were not to be taken or continued but the Magistrate must try to restore the status quo ante by directing delivery of the property to the party from whom it was attached. For that purpose he should at least make an effort to find out from the material on record whether it was possible to determine from whose possession the property was attached. If it was possible, then there could be no difficulty and on cancellation of the order of attachment, the property could be returned to such party from whom it was attached. But this may not, however, be possible in each and every case because of the difficulty in determining the question as to which was the party from whom the properly was attached. There may also be cases where it may be found that neither of the parties was in possession. 4. Under such circumstances, the only course open to the Magistrate will be to keep the property under attachment until a competent Court determines the rights of the parties thereto with regard to the person entitled to the possession thereof. This course of action is also in full consonance with the provisions of section 146 of the new Code by which these proceedings are governed. Even in cases governed by the old Code, this Court has been of the view that an effort should be made to find out from the material on record whether it was possible to determine as to from whose possession the property was attached. In the case of State v Sheoratan Singh AIR 1951 Nag.201, a Division Bench of this Court had observed that even after cancellation of the preliminary order under sub -section (5) the Magistrate should restore the status quo ante by directing the delivery of the property to the party from whom it was attached. However, in such cases where it was not possible to tell from the record in whose possession the property was, when the attachment took place, the appropriate order for the Magistrate to pass was to retain the property in the custody of the Court and direct the parties to have recourse to a Civil Court to obtain a decision on their right to possession of the property. 5. The sole purpose of the proceedings under section 145 Cr.P.C. is to avoid the situation of breach of peace likely to be caused due to disputes relating to possession of immoveable property. Whenever during the pendency of such proceedings the Magistrate disturbs the possession of the parties by taking the property in dispute in the custody of the Court, the does so by way of an ad -interim arrangement to be replaced by the final decision on the question of possession. It is true that the provisions of sub section (5) of section 145 of the Code enable the Magistrate to drop the proceedings on being satisfied that subsequently there was no likelihood of breach of peace. But it does not mean that despite having taken the property under attachment. he should drop the proceedings and leave the parties to break their head and create a cause for further likelihood of breach of peace. An effort shall always be made to secure restitution in the light of the discussion made above. The proceedings taken for securing restitution even after cancelling the preliminary order are in the nature of incidental winding up proceedings, and the Magistrate is competent to look into the record to find out as to which was the party in possession at the time of effecting the attachment. In cases where it is not possible to do so, the Magistrate has to continue to keep the property under attachment till the decision by a competent Court in that respect. But in no case, the parties should be left to be involved in a subsequent dispute. Similarly, the matter also should not be left with the Police to decide as to which party was in possession and thereby entitled to restoration on the termination of the order of attachment. 6. The order impugned directing the police officer to return the property to the party from whom it was attached is, accordingly, modified and it is directed that the SDM shall go through the material on record and if he finds it possible to determine as to from whose possession the property was attached, necessary specific directions may be made accordingly to return the property to such party. In case the Magistrate finds that it is not possible to determine as to which party was in possession at the time of attachment or that none of the parties was in possession, then he may keep the property under attachment in accordance with the provisions of section 146 (1), until a competent Court determines the rights of the parties with regard to the person entitled to the possession thereof. 7. This revision, is, therefore, partly allowed. The parties are directed to appear before the SDM Karera, on 4 -6 -1979.