Abdul Sattar vs State of Bihar and Others

S. Ali Ahmad, J.—The second party to a proceeding u/s 145 of the Cr.P.C. 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 u/s 146(1) of the Code, presumably on the ground that once the land is attached u/s 146(1) of the Code then the Magistrate cannot proceed further in the matter.

It appears that a proceeding u/s 144 of the Code was pending between the parties with respect, to the land in question. That proceeding was converted into one u/s 145 of the Code by an order dated 23-7-1975 and on that very day the lands were attached u/s 146(1) of the Code on account of emergency conditions. The learned Magistrate thereafter directed the parties to file written statement etc.

It appears from the impugned order that the learned Assistant Public Prosecutor urged that once the land was attached u/s 146(1) of the Code then the criminal court had no jurisdiction 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 �o 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 Hussain 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 a decision of the Supreme Court Chandu Naik and Others Vs. Sitaram B. Naik and Another, , In this case also the lands were attached un- der 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) the proceeding had abated. Untwalia, J, delivering the judgment of the court held that Section 8 of the Act was no bar to a proceeding u/s 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. It will do good to quote that passage which runs as follows (at p. 358 of Cri LJ):

The Magistrate, in the first instance, will try to conclude the proceeding in accordance with the various provisions of Section 145 of the Code. If he is able to declare the possession of either party on consideration of the evidence adduced or to be adduced before him he would do so. In that event the other party will be forbidden from creating any disturbance of the possession (including the deemed possession, in case the application of the proviso to Sub-section (4) is found necessary) of the party declared in possession. The Magistrate, then will have to withdraw the attachment in accordance with the proviso to Sub-section (1) of Section 146 because, as per his order declaring a party in possession there would be no longer any likelihood of the breach of the peace with regard to the subject of dispute. The party not found in possession by the Magistrate will have to seek the redress of his grievance, if any, elsewhere. If however, the Magistrate decides that none of the parties was in possession of the disputed property on the date of the order made under Sub-section (1) of Section 145 or if he is unable to satisfy himself as to which of them was then in possession of the subject of dispute he need not lift the attachment until a competent court had determined the rights of the parties as provided for in Section 146(1). In such a situation recourse, if necessary, may be taken to Sub-section (2) of Section 146 of the Code either by the Magistrate or a civil court, as the case may be.

A perusal of the law laid down by the Supreme Court makes the position quite plain and that is that in spite of attachment u/s 146(1) of the Code on the ground of emergency the Magistrate has to proceed with the proceeding and in case he finds any party to be in possession of the land in question then his possession has to be declared and attachment has to be withdrawn. The learned Magistrate, therefore, was clearly in error in thinking that since the land had been attached the function of the criminal court had come to an end and the parties should now go to the civil court. The impugned order, therefore, is bad and is accordingly, set aside. The learned Magistrate will now give opportunity to the parties to file written statement etc., and dispose of the case expeditiously as it is an old case. The application is accordingly allowed and the case is sent back to the learned Magistrate to dispose it of in accordance with law and in the light of the observation made above.