Ishan Chandra Banerjee vs Srinath Banerjee and Others

Chapman, J.—On the 12th of January 1917, the Sub-Divisional Officer of Purulia drew up a proceeding u/s 145 of the Code of Criminal Procedure in respect of five khets of land. Previous to the drawing up of this proceeding the Police Officer in Charge of the Police Station at Purulia had caused the paddy standing on the disputed land to be out and kept in the custody of a third party in pursuance of an order, dated the 19th of December 1916, by the Sub-Divisional Officer. One side claimed to be in separate possession of the land, the other side claimed to be in joint possession of the land. The Magistrate after hearing the evidence came to the conclusion that the parties were in joint possession of the land, that there was no likelihood of a breach of the peace and he ordered the paddy to be equally divided between the two parties.

The party which claimed to be in separate possession of the land now moves this Court and asks for an order setting aside the order of the Magistrate directing that the paddy should be divided between the two parties. I have been referred to a casein the notes part of the Calcutta Weekly Notes in which Casperz and Sharfuddin JJ., said "that inasmuch as the order was not under the terms of any section of the Code of Criminal Procedure they had no alternative but to set the order aside." That is not the view that 1 take of the matter. The Court is not bound to exercise its powers of revision in such a case. The Magistrate found himself rightly or wrongly in the custody of this property. He had to pass some order about it, and this he did in the exercise of his discretion. The parties have another remedy. It is open to the petitioner to file a suit in the Civil Court, as he will in any case have too do, and ask for an injunction pending the suit If I am to hold that the Magistrate bad no jurisdiction to pass any order what ever about the paddy which happened to fall in his custody in the course of the criminal case, it would lead to ran impasse I am not prepared to say that this Court should necessarily interfere if the Magistrate in the exercise of his discretion passes an order regarding the disposal of property which he finds in his possession.

The application is rejected.