SITARAM Vs. GHASIRAM

JUDGEMENT

(1.) THE learned Single Judge has referred this criminal revision to a Division Bench vide his order dated 12. 10. 76 in view of the doubts expressed by him about the correctness of the decision in Umrao vs. Sheonarain (l), Mansukh Ram vs. THE State and Ganesha Ram (2) and Malam Singh vs. State of Rajasthan (3 ).

(2.) IN Umrao's case, this Court held that after attachment of the subject of dispute in a case of emergency under sub-section (1) of sec. 146, Cr. P. C, 1973 (hereinafter referred to as the New Code) a proper enquiry into the question of possession as envisaged by sub-sec. (4) of s. 145 of the New Code is of no use, because even after passing a final order under sub-sec. (6-A) of sec. 145 of the New Code, an attachment has to be continued until deter-mination by a competent Court of the rights of the parties to the subject of dispute with regard to the person entitled to the possession thereof. A similar view was taken in Mansukh Ram's case (supra ). IN Malam Singh's case (supra), the question was as to whether the order of attachment was a final order or only an interlocutory order. So far as the point, as to whether after having once attached the subject of dispute under sub-sec. (l)of S. 146 of the New Code, the Magistrate becomes functus officio and can proceed to enquire into the question of possession or not the learned Judge refused to express any opinion, as, in his opinion, it was not necessary for the disposal of that case.

(3.) WE now direct the learned Magistrate to proceed in accordance with law to decide the question of possession in terms of s. 145 (4) of the New Code of the subject of dispute. .