BAIDYANATH MOHANTY Vs. KUNJABEHARI DAS MOHAPATRA

JUDGEMENT

(1.) THIS is a criminal revision against an order passed by the Additional Sessions Judge of Mavurbihanj, on an anneal under Section 520, Criminal Procedure Code, against an order passed by the Magistrate, First Class, Balasore, who, after dropping a proceeding under Section 145 of that Code, directed that the entire paddy from the attached property should be delivered to the first party after making the necessary deductions.

(2.) THE learned Additional Sessions Judge thought that after dropping the proceeding under Section 143, Criminal Procedure Code, the learned Magistrate had no jurisdiction to pass consequential orders regarding the disposal of the attached property as he had become functus officio. Here, however, the learned Sessions Judge was clearly wrong. It is true that after dropping the proceeding under Section 145 the learned Magistrate may not have jurisdiction, under Sub-section (8) of that section, to pass any orders directing the disposal of the attached property, because that sub-section, in express terms, applies only when an enquiry under that section is 'completed'. By dropping a proceeding under Section 145, it cannot be said that the enquiry under that section is 'completed'. It may really tantamount to 'cancellation' of the order passed under that section as provided in Sub-section (5 ).

(3.) BUT that does not exhaust the jurisdiction of the Magistrate. I think in cases of this type the Magistrate has jurisdiction to act under Subsection (1) of Section 517, Criminal Procedure Code. That sub-section clearly says that when an enquiry is) 'concluded' the Court may make such order as it thinks fit for the disposal of any property produced before it. In Jam Bhambho v. Makhdum AIR 1942 Sind 117 (A), it was pointed out that even after cancellation of an order under Section 145 (5), Criminal Procedure Code, the Magistrate had jurisdiction to direct restoration of the attached crops or their proceeds to the party from whose possession they were taken. To a similar effect is the decision of the Allahabad High Court reported in Raj Deo v. Emperor AIR 1948 All 425 (B), where it was observed that though a proceeding under Section 145 terminated on cancellation of the order under Sub-section (5) of that section, the Magistrate had jurisdiction to pass incidental orders relating to the attached property. Doubtless, in neither of these decisions was it expressly observed that Section 517 (1), Criminal Procedure Code, would apply to cases of this type. The cancellation of an order under Section 145 and the dropping of the proceeding under that section, would both amount to the conclusion of the enquiry under that section, as distinct from the completion of such enquiry. There is a slight distinction between 'completion' of the enquiry under Section 145. Criminal Procedure Code, which is dealt with in Subsection (8) of that section and 'conclusion of the enquiry which may arise when the proceedings are dropped (as in the present case) without the enquiry being completed. In the latter case, since there is no express provision in Section 145 itself for passing incidental orders for the disposal of the attached property, there is no special reason why the Magistrate should not invoke the power conferred by Subsection (1) of Section 517. Criminal P. C. , especially when that subsection says that the Court has jurisdiction to pass such order as it thinks fit not only in respect of the property used for the commission of an offence tout also in respect of any property produced before it or in its custody even though, no offence in regard to it has been committed See Rusul Bibi v. Ahmed Moosajee ILR 34 Cal 347 (C ).