SAYED SALAHUDDIN AHMAD Vs. JANKI MAHTON

JUDGEMENT

(1.) This is an application to quash a certain pro-ceding drawn up under Section 145, Criminal Procedure Code, and pending in the Court below. The circumstances are these. There are two brothers named Salahuddin Ahmad and. Masleuddin Ahmad. Masleuddin Ahmad was declared an evacuee under the Administration of Evacuee Property Act (Act No. XXXI of 1950 and hereafter to be called the Evacuee Property Act) in the month of October, 1952. The two brothers possessed certain proper-ties jointly, and the half share of Masleuddin Ahmad has been declared to be an evacuee property under the aforesaid Act. The properties, subject matter of the proceeding under Section 145, Criminal Procedure Code, are the half share of Masleuddin Ahmad declared to be evacuee property, and the half share of Salahuddin Ahmad. The present application has been filed by "Salaudidn Ahmad, and the contention raised by Mr. Lal Narain Sinha on his behalf has been that in the peculiar circumstances of this case, the proceeding must be quashed.

(2.) The Magistrate in a proceeding under Section 145 of the Code of Criminal Procedure has to make an enquiry as to the person in possession of the property within the meaning of Sub-section (4) of Section 145, Criminal Procedure Code, and when the Magistrate decides who is in possession of such property, he has to make an order under Sub-section (6) of Section 145 declaring such person to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction. Now, Sub-section (1) of Section 4 of the Evacuee Property Act provides as follows:

(3.) The inconsistency takes this form. Under Section 7 of the Evacuee Property Act, the custodian has been empowered to hold an enquiry and to pass an order declaring a property to be evacuee property. Sub-section (1) of Section 8 deals with the matter of vesting of evacuee property in the custodian and it provides that any properly declared to be evacuee property under Section 7 shall be deemed to have vested in the Custodian for the State. This sub-section accordingly must be interpreted to mean that once a property has been declared to be evacuee property under Section 7 of the Evacuee Property Act, that property must be deemed to have vested in the Custodian for the State. Mr. Sri Narain Sahay, who appeared for the opposite party (other than the Custodian), drew our attention to Sub-section (3) of Section 7, which provides that the Custodian shall from time to time notify, either by publication in the Official Gazette or in such other manner as may be prescribed, all properties declared by him to be evacuee properties under Sub-section (1), and he suggested that although the Custodian has passed an order for the issue of such a notice, that is to say a notice under Sub-section (3) of Section 7, no such publication has yet been made. But to my mind, this point is of no avail to him for the reason that the vesting of the evacuee property in the custodian dates from the date of the daclaration of the property as evacuee property and not from the date of the publication under Sub-section (3) of Section 7 of that Act. A declaration of the share of Masleuddin Ahmad as evacuee property has been made and the property has vested in the Custodian. That being so, Sub-section (4) of Section 8 of the Evacuee Property Act at once comes into effect. This sub-section provides as follows: