RAJDEO SINGH Vs. EMPEROR THROUGH SADLOO

JUDGEMENT

(1.) This reference arises in a proceeding started under Section 145, Criminal P.C. It appears that there was a dispute between Sadloo Bhar and his brothers on the one hand and Eajdeo Singh on the other, concerning a plot of land and a crop standing thereon. Sadloo Bhar moved the learned Magistrate by means of an application stating that there was an imminent danger of a breach of the peace concerning this land and the crop and that the property should be attached. The learned Magistrate seems to have been satisfied as to the imminence of the danger of a breach of the peace and ordered that notice might be issued under Section 145, Sub-section (1), Criminal P.C., to the parties concerned. He further Ordered that the property in dispute be attached. On the date fixed in the notice issued under Section 145(1), Sadloo Bhar did not appear. The learned Magistrate dismissed Sadloo Bhar's application for default on 4 July 1946, and ordered that the attached property be released. He did not specify in his order in whose favour the property was to be released. Thereafter, an application was made by Rajdeo Singh that the application of Sadloo Bhar might be dismissed and the attached property should released from the possession of Sadloo Bhar and restored to him. A similar application was made by Sadloo Bhar and his brothers that the attached property, which was in their possession should be released in their favour and not in favour of Rajdeo Singh. The learned Magistrate fixed 30 August 1946, for the hearing of these two applications. Sadloo Bhar appeared while Rajdeo Singh was absent. The learned Magistrate then adjourned the case for the following day. On the following day, i.e., 31 August 1946, Sadloo Shar was present but Rajdeo Singh was not present. It does not appear that any notice of the adjourned hearing was issued to Rajdeo Singh at all, and it does not seem likely that he could have been served with any notice since only one day elapsed between the previous date and the adjourned date. On this adjourned date, the learned Magistrate passed the following order: The second party (Bajdeo Singh) has again absented itself. Let the attached property be released is favour of the first, party (Sadloo Bhar and his brothers).

(2.) Against this order Rajdeo Singh filed an application in revision to the learned Sessions Judge, Azamgarh. The learned Sessions Judge has taken the view that the procedure adopted ,by the learned Magistrate in releasing the attached, property in favour of Sadloo Bhar and his brothers was based on no evidence on the record and was wholly without jurisdiction; and he has referred the matter to this Court.

(3.) In my opinion, the procedure adopted by the learned Magistrate was wholly illegal. The first order of dismissal for default and the second order directing the attached property to be released in favour of the second party were both unwarranted by law.