ABDUL SATTAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The second party to a proceeding under section 145 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) has come up to this court challenging the order dated 25.11.1975 by which the learned Magistrate has recalled the order directing the parties to the proceeding to file written statement etc., on the ground that the land in dispute is already attached under section 146 (1) of the Code, presumably on the ground that once the land is attached under section 146 (1) of the Code then the Magistrate cannot proceed further in the matter.

(2.) It appears that a proceeding under section 144 of the Code was pending between the parties with respect to the land in question. That proceeding was converted into one under section 145 of the Code by an order dated 23.7.1975 and on that very day the lands were attached under section 146 (1) of the Code on account of emergency conditions. The learned Magistrate thereafter directed the parties to file written statement etc.

(3.) It appears from the impugned order that the Learned Assistance Public Prosecutor urged once the land was attached under section 146 (1) of the Code then the criminal court had no jurisdicton to proceed further in the matter and the parties, if so advised, could seek their redress in civil court, He, therefore, contended that the order directing the parties to file written statement etc., should be recalled. This argument appealed to the learned Magistrate and he recalled the order directing the parties to file written statement etc., on the ground that the land had already been attached. The learned Magistrate, however, did not mention as to what would happen to the proceeding. Perhaps he meant that nothing further after attachment could be done by the criminal court. Mr. Asghar Hussuin learned counsel for the petitioner urged that the view taken by the learned Magistrate was erroneous. According to him, even though the lands were under attachment, the proceeding had to be decided in accordance with the provision contained in section 145 of the Code. To support his argument, Mr. Hussain referred to decision of the Supreme Court in Chandu Naik and others v. Sitaram R. Naik, (AIR 1978 SC 333). In this case also the lands were attached under section 146 (1) of the Code. Thereafter the learned Magistrate was of the opinion that on account of section 8 of the Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975 (hereinafter referred to as 'the Act') had abated Untwalia delivering the judgment of the court held that section 8 of the Act was no bar to a proceeding under section 145 of the Code and as such the proceeding should be disposed of in accordance with law. The learned Judge for the guidance of the Magistrate has indicated briefly as to how the magistrate is to proceed for disposing of the proceeding, ft will do good to quote that passage which runs us follows :