SHEO MANGAL SINGH Vs. THAKURAIN MAHARAJ KUAR

JUDGEMENT

(1.) It would appear that one Thakurain Mahans Kunwar died on 6 July 1947. Two widows of Jadunath Singh, Mt. Mahraj Kuer and Mt. Drupdi Kuer, who are mothers-in-law of Mt. Mahana Kunwar and Shivamangal Singh, claimed her property. Disputes began immediately after her death on 6 July 1947, and on 17 July 1947 the police of Mustafabad Police Station moved the Magistrate concerned for action under Section 145, Criminal P.C., against both the parties, that is, Shivamangal Singh and the two widows. On 18 July 1947, the Court ordered attachment of moveable property and also immovable property. The moveable property was actually attached on 21 July 1947. It was not clearly indicated as to from whose possession the property had been recovered. The two widows filed an objection saying that proceedings under Section 145, Criminal P.C., cannot be taken in respect of moveable property and the proceedings should accordingly be dropped. It was alleged that the moveable property had been seized from their possession. The same objections were made again on 23rd August 1947, when written statements were filed by them. Shivamangal Singh, on the other hand, claimed that the moveable property had been recovered and seized from Ms possession and he had handed over the keys to the police and the duplicate keys were still with him. The learned Magistrate directed the police to report and explain as to the nature of the moveable property and the person or persons, from whom it had been recovered. On 20 October 1947, the learned Magistrate perused the police report and heard the arguments of the parties, and on 27 October, passed the following order: Seen police report. The moveable property under attachment should be released in favour of the widows of Thakur Jadunath Singh. Shivamangal Singh lives separately and was not in possession. Being dissatisfied with this order, Shivamangal Singh went up to the learned Sessions Judge complaining that the learned Magistrate had no jurisdiction to pass an order of this kind. His application was rejected.

(2.) It has now been urged that the learned Magistrate had, in the first place, no jurisdiction to pass any order in respect of the moveable property; and, in the second place, even if he had jurisdiction he relied merely upon the un-proved report of the police and there was no opportunity given of producing evidence before the Magistrate to show as to the person from whose possession the property had been seized. I have heard the learned Counsel and I am satisfied that the order of the Magistrate cannot be allowed to stand.

(3.) There is no doubt that action under Section 14S, Criminal P.C., can be taken only in respect of immovable property. The learned Magistrate acted clearly without jurisdiction, in the first place, in ordering attachment of the property. He had no power strictly speaking to order release of the property under Section 145, Criminal P.C. However, he had power under Section 517, Criminal P.C., to pass orders regarding disposal of property which had come into the custody of the Court. It was entirely wrong for the learned Magistrate to rely merely on the police report in holding that the property had been seized from the possession of the widows. He should have given an opportunity to both the parties to produce evidence in Court as to the person who was in possession of the property. Mere tiling of the report was not enough. It ought to have been proved by the person who made it and that person should have been asked on the subject of possession of the parties.