THOKCHOM KHOYON SINGH Vs. MOIRANGMOYUN BIRA SINGH

JUDGEMENT

(1.) BY this common judgment, we propose to dispose of these two Criminal Revisions, Criminal Revn. No. 3 of 1976 and Criminal Revn. No. 9 of 1976, in which a common question of law is involved, namely, whether the Magistrate has jurisdiction to continue and finally decide the proceeding under Section 145(6) of the Cr. P.C. after he has attached the disputed land under Section 146(1) of the Code, considering the case to be one of emergency.

(2.) IN Criminal Revn. No. 3 of 1976, the petitioner before us was the first party and the respondent No. 1 the second party in the proceeding under Section 145, Cr. P.C. before the Sub -Divisional Magistrate, Bishenpur, which was initiated by the first party. The Magistrate, after drawing up the proceeding passed the preliminary order under Section 145(1) of the Code on 9 -5 -74, and called upon the parties to put in their written statements on 30 -5 -74. As shown by the warrant of attachment signed by the Magistrate, the disputed land was attached on 18 -5 -74. Both the parties led evidence; the Magistrate on the materials placed before him passed the final order under Section 145(6) of the Code, declaring the second party to be entitled to possession of the disputed land until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction. The first party feeling aggrieved by the said order filed revision petition to the learned Sessions Judge, Manipur, and the learned Additional Sessions Judge, Manipur to whom the case, it appears, was transferred, accepted the revision taking the view that the Magistrate has no jurisdiction to continue and finally decide the proceeding under Section 145(6) of the Code after attachment of the disputed land under Section 146(1) of the Code. He did not consider the case on merits. The second party has come up in revision before us.

(3.) WE now proceed to consider the common question of law posed before us. There has been divergence of views on this question among different High Courts, even in the same High Court. One view is that after attachment of the disputed land under Section 146(1) of the Code, the Magistrate becomes functus officio and has no jurisdiction to continue and finally decide the proceeding under Section 145(6) of the Code. A contrary view has been expressed by some High Courts that the Magistrate is competent to continue proceeding and pass final order in such cases.