GUMANTA MOHAN DEB Vs. ABDUL KARIM MIA

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge, Tripura in which recommendation has been made for setting aside the order dated 6.5.1953 passed by the learned Magistrate, Khowai Sri A. Singh, in Criminal Misc. case No. 9 of 1953 under Section 145, Criminal Procedure Code directing the Receiver appointed by the Court to hand over the disputed land to the Ist party Abdul Karim Mia and also directing Abdul Karim Mia to receive the amount deposited in the Khowai Treasury as income of the disputed land under attachment proportionate to his share. It appears from the record that Abdul Karim Mia initiated proceedings under Section 144, Criminal Procedure Code against the Opposite party No. 2 in the Court of Sri H. S. Dev Barma, the then S. D. M., Khowai on the ground that there was apprehension of breach of peace. Sri H. S. Dev Barman quashed this proceedings on 5.6.1952 on the ground that there was no apprehension of breach of peace but he started proceedings under Section 145, Criminal Procedure Code He did not pass any preliminary order as required by Section 145, Criminal Procedure Code and he did not require the parties to file their written statements but he ordered them to produce their witnesses. Sri H. S. Dev Barma also ordered attachment of the disputed property and a Receiver was also appointed with respect to this property on 5.6.1952. Later on Sri H. S. Dev Barma was transferred and Sri A. Singh took charge as S. D. M., Khowai Sri A. Singh held that as there was no apprehension of breach of peace on 5.8.1952 no proceedings under Section 145, Criminal Procedure Code could legally be initiated and so he quashed the proceedings under Section 145, Criminal Procedure Code on 6.5.1953. He however, proceeded to record the evidence of the parties on the question as to who was in actual possession of the land in question on 5.6.1952 and after a protracted enquiry it was held by him that the Opposite Party No. 1 was in possession and so the disputed property should be released in his favour. As already mentioned above it was further ordered that the proportionate share of the sale proceedings of the crop of this land be also given to the Opposite Party No. 1.

(2.) THE learned Sessions Judge has referred the case to this Court and his argument is that after 6.5.1953 when Sri A. Singh quashed the proceedings under Section 145, Criminal Procedure Code he became functus officio and he had no jurisdiction to record the evidence on the question as to who was in possession of the disputed land on 2.5.1952 or 5.6.1952. The learned Magistrate. I think, should have released the property in favour of the party from whose possession it was attached and any of the aggrieved parties could go to the competent Civil Court for adjudication of his rights.

(3.) IT appears from the application No. 201 dated 14.8.1952 that the Opposite Party No. 1 is a resi dent of Pakistan and his allegation in the application dated 2.5.1952 is that when he went to plough the land in question the Opposite Party No. 2 (the present petitioner) turned him out and he did not allow him to cultivate this land. It thus became clear that the Opposite Party No. 1 could not possibly has raised the crop in question and so the learned Magistrate should not have made any detailed enquiry after the proceedings under Section 145 before him were over. As such I am of opinion that the order passed by the learned Magistrate in this case is legally not sustainable and so it is set aside and the reference is accepted to the extent indicated above.