Bisweswar Pattnaik vs Rahas Bihari Naik

S. Acharya, J.—The first party in the 145 proceeding has preferred this revision against the impugned order passed in the said proceeding.

The short point taken by Mr. Das, the ''learned Counsel for the Petitioner, is that the Magistrate after attaching the property on the ground of emergency did not have any jurisdiction to proceed with the said case, and so the impugned order is without jurisdiction. Mr. Das contends that after the said order of attachment the proceeding before the criminal Court comes to an end, and thereafter the rights of the parties entitled to possession of the lands in question have to be determined by the competent Court, and so the Court below after passing the said order had no jurisdiction to proceed with the said proceeding.

There is no provision u/s 145 of the new Criminal Procedure Code, 1973 for attaching the disputed land and keeping the same in charge of the receiver. Section 146(1), Code of Criminal Procedure provides for the attachment if the property on certain contingencies or circumstances.

In the Division Bench decision of this Court reported in Dandapani Pala and Others Vs. Madan Mohan Pala and Others, , it has been held that once the property in question is attached on the ground of existence of emergency, the dispute before the criminal Court comes to an end and the question as to which party is entitled to possession of the said property has to be determined by the competent Court. It has been expressly held that once an order of attachment u/s 146(1) of the Code is passed on being satisfied about the existence of any of the three contingencies mentioned in the said Sub-section, the proceeding u/s 145, Criminal Procedure Cede terminates. The first of the three contingencies is when the Magistrate ''considers the case to be one of emergency'', In arriving at the said decision, the learned Judges received support from two other Single Judge decisions of this Court and one of the Allahabad High Court as mentioned in the said decision.

In another decision of the Patna High Court reported in Md. Muslehuddin and Anr. v. Md. Salahuddin 1977 Cri. L.J. 1150, it has been held that the Magistrate is not entitled to proceed to decide u/s 145 as to which of the parties is in possession of the lands in question after he has attached the subject of dispute u/s 146(1) of the Code.

As the law on the point has been settled as above by the Division Bench decision of this Court, which decision gets support from other decisions of our High Court and other High Courts, the Magistrate, after attaching the property u/s 146(1) of the Code, was not entitled to proceed with the said case in order to decide as to which of the parties was in possession of the lands in question at the relevant time. As the dispute before the criminal Court came to an end on such attachment, the Magistrate had no jurisdiction to pass the impugned order in the said proceeding.

Accordingly, in the facts of this case, the Magistrate was clearly without jurisdiction to pass the impugned order, and hence the said order is hereby quashed.

The Magistrate by the impugned order has vacated the order of attachment passed by him earlier in this proceeding. The order of attachment was legally passed u/s 146(1), Code of Criminal Procedure on the Magistrate''s finding of existence of emergency in this case. The Magistrate''s finding that the second party was in possession of the lands in question at the relevant time is clearly without jurisdiction for reasons stated above. So the Magistrate''s order to lift the order of attachment and to put the second party in possession of the property on the basis of the aforesaid finding is also not legal order. The Magistrate, after passing the order of attachment u/s 146(1), Criminal Procedure Code, could only have lifted the same only under the proviso to Sub-section (1) of Section 146 of the Code. That being so, the entire order to the above effect is without, jurisdiction. As the Magistrate had already passed an order of attachment u/s 146(1), Code of Criminal Procedure in this proceeding and that order of attachment has not been legally lifted, the said order of attachment shall be deemed to be in force. If in fact, due to the above-mentioned illegal order of the Magistrate, the attachment of the property has actually been lifted and possession of the said property has been delivered to the second party as per the said illegal order of the Court below, the Magistrate shall immediately issue a fresh order of attachment, and the parties will thereafter seek their remedy in a competent Court of law, as provided u/s 146, Criminal Procedure Code.

The revision accordingly is allowed.

Send back the L.C.R. immediately with a copy of this judgment.