BISWESWAR PATTNAIK Vs. RAHAS BIHARI NAIK

JUDGEMENT

(1.) THE first party in the 145 proceeding has preferred this revision against the impugned order passed in the said proceeding.

(2.) THE short point taken by Mr. Das, the 'learned Counsel for the Petitioner, is that the Magistrate after attaching the property on the ground of emergency did not have any jurisdiction to proceed with the said case, and so the impugned order is without jurisdiction. Mr. Das contends that after the said order of attachment the proceeding before the criminal Court comes to an end, and thereafter the rights of the parties entitled to possession of the lands in question have to be determined by the competent Court, and so the Court below after passing the said order had no jurisdiction to proceed with the said proceeding.

(3.) THE Magistrate by the impugned order has vacated the order of attachment passed by him earlier in this proceeding. The order of attachment was legally passed under Section 146(1), Code of Criminal Procedure on the Magistrate's finding of existence of emergency in this case. The Magistrate's finding that the second party was in possession of the lands in question at the relevant time is clearly without jurisdiction for reasons stated above. So the Magistrate's order to lift the order of attachment and to put the second party in possession of the property on the basis of the aforesaid finding is also not legal order. The Magistrate, after passing the order of attachment under Section 146(1), Criminal Procedure Code, could only have lifted the same only under the proviso to Sub -section (1) of Section 146 of the Code. That being so, the entire order to the above effect is without, jurisdiction. As the Magistrate had already passed an order of attachment under Section 146(1), Code of Criminal Procedure in this proceeding and that order of attachment has not been legally lifted, the said order of attachment shall be deemed to be in force. If in fact, due to the above -mentioned illegal order of the Magistrate, the attachment of the property has actually been lifted and possession of the said property has been delivered to the second party as per the said illegal order of the Court below, the Magistrate shall immediately issue a fresh order of attachment, and the parties will thereafter seek their remedy in a competent Court of law, as provided under Section 146 , Criminal Procedure Code.