RAMSUKH Vs. STATE

JUDGEMENT

(1.) THIS reference arises out of proceedings started under s. 145 of; the Criminal Procedure Code on a police report dated the 14th August, 1947. The report was to the effect that there was a dispute concerning 48 bighas of kham land known as Chejarwari situated in Nawalgarh between two parties consisting of Ram Sukh and his sons, Bhola, Kalia and Narain on the one hand and Jhabar, Hanuman, Har Dave and Ganpat on the other. It was alleged that the dispute regarding the said land was continuing between the parties for a long time, that the matter had aggravated and there was likelihood of a breach of the peace, and, therefore proceedings under sec. 145 of the Criminal Procedure Code should be taken out. The proceedings were commenced in the court of the Nazim and were later continued in the court of the Sub-Divisional Magistrate, Jhunjhunu. The property which was the subject matter of dispute was attached by the court. Both the parties produced their evidence and the case protracted for an unusually long time. Ultimately, on the 29th of August, 1952, the Sub-Divisional Magistrate passed an order that no dispute existed between the parties and he dropped the proceedings under, sub-sec. 5 of sec. 145 Criminal Procedure Code. While passing this order, however, he referred to the claims of the contesting parties and relying on the police report and other evidence, he ordered some part of the property to be given to the first party and some to the second one. The first party filed a revision Application before the Sessions Judge, Jhunjhunu questioning the validity of the Sub-Divisional Magistrate's order regarding the manner of the return of the property, The learned Sessions Judge has found the objection to be correct and has made the present reference.

(2.) THE main question which arises in the present case is as to what order the Sub-Divisional Magistrate ought to have passed regarding the property which was attached when he dropped the proceedings under sub-sec. 5 of sec. 145 Criminal Procedure Code on the basis that no dispute existed between the parties. It is quite clear that once the Magistrate drops the proceedings under sub-sec. 5 of sec. 145 of the Criminal Procedure Code and cancels his preliminary order, he becomes funtus officio and the matter comes to a stage as if no proceedings at all were initiated under this section, After this there is no power left in the Magistrate to go into the evidence of the parties or any other record to find out and decide as to which of the parties was in possession of the whole or part of the disputed property. If he proceeds to examine the evidence and goes through the claims of the respective parties regarding the fact of their actual possession of the subject of dispute on the date of the preliminary order, then he virtually re-starts the proceedings which he had already closed and which he cannot revive in the absence of a dispute between the parties. THE question still remains as to what the Magistrate should do with the attached property and the profits, if any, which might have accrued within the duration of the period of attachment. THE Sessions Judge has in this respect referred to the case of Kishan Sahai vs. State (1 ). In that case, the order of the Magistrate directing the attached property to be handed over to the opposite party was set aside following the decision in Dasharth vs. Tara Chand (2) and Narain and another vs. Chiguluri Venkiah and others (3), but it was not decided as to what should have been done to the property which was attached. In the case of Dashrath vs. Tara Chand (2) (A. I. R. 1925 Nag. 297.), it was held that "where a Magistrate attaches in cases of emergency the property which is the subject of dispute under sec. 145 and after recording evidence adduced by the parties to the proceeding comes to the conclusion that there is no danger of a breach of the peace and on that ground files the proceedings he has no jurisdiction to direct that the attached property should be delivered to one of the parties to the proceeding. In such a case the proper order is to direct that the property should remain in his custody and management pending decision of a civil court on the question of title. "

(3.) THE reference is accepted. THE order of the Magistrate is set aside. THE file be sent back to him with directions to release the disputed property under attachment. .