Sheonandan vs Teja

P.N. Bakshi, J.—Sheonandan filed an application u/s 145 Code of Criminal Procedure alleging that Teja was interfering with his possession over the plots in question which was likely to lead to an apprehension of the breach of peace. He prayed for action being taken u/s 145 Code of Criminal Procedure. After calling for a report from the police the Sub-Divisional Magistrate passed a composite order, which included the preliminary order as well as the order attaching the property on 7-2-79. Aggrieved thereby a Misc. Case No. 2893 of 1979 was filed in this Court which was allowed in part by Hon''ble G.D. Srivastava (now Retired) on 25-10-79. He confirmed the preliminary order but set aside the order of attachment on the ground that the Magistrate had acted illegally in passing a composite order. However this Court gave a direction that if the Magistrate so desired, he could pass a fresh attachment order. When the case went back to the Magistrate he passed the disputed order on 27-12-79 whereby he has given possession of the disputed plots to Teja as Supurdar. In other words he has attached the property and given delivery of possession to one of the parties to the litigation. Aggrieved thereby a Revision was filed before the Sessions Judge, Fatehpur, which has been dismissed on 14-5-1980, hence this application u/s 482 Code of Criminal Procedure.

I have heard Counsel for the parties and have also perused the impugned order. It is obvious from the impugned order passed by the Magistrate on 22nd Dec. 1979 that the attachment order did not clarify the person from whose possession the property in question was attached. In these circumstances the Magistrate proceeded to examine the evidence on the record. He was of the opinion that since Teja has no other means of livelihood, therefore, possession of the property should be delivered to him. He, therefore attached the property and delivered possession to Teja. No order was passed by the Magistrate directing Teja to deposit all the usufructs or the income arising from the property in dispute during the tendency of 145 Code of Criminal Procedure proceedings. The result therefore is that Teja has been put in advantageous position by order of the Magistrate. The Magistrate has directed that when he passed the final order he reserved to himself the right to deliver possession to the party found in possession by him and also to award the profit accruing from this land. This again is confused expression of the exercise of power by the Magistrate. In order to safeguard the interest of the applicant he should have directed Teja to deposit the income accruing from the property in court. So that at a subsequent stage if he is not found in possession, the applicant may not be prejudiced by the order of the court, and the profits could be easily awarded. Be that as it may there can be no doubt that putting Teja in possession of the property has resulted in grave injustice to the applicant inasmuch as prior to the decision of the proceedings u/s 145 Code of Criminal Procedure one party has been put In much more advantageous position than the other contesting party. If the Magistrate considered reattachment of the property necessary, what he should have done was to order the attachment and to put the property in the custody of an independent supporter during the tendency of the proceedings u/s 145 Code of Criminal Procedure. In a Division Bench decision of the Patina High Court reported in Mt. Lachmi Kuar Vs. Gajadhar Proshad and Others, it has been observed as follows:

A court should not place the disputed property in actual possession of persons who are parties to the proceedings and who are found not to have been in possession of the disputed property irrespective of any prejudice or not to any party to the proceeding.... But where the order of the Magistrate offends against an elementary rule founded on the desire of courts to place the parties to a proceeding on footing of absolute equality the order must be set aside.

I agree with the proposition of law as laid down by the Division Bench of Patina High Court.

In these circumstances in the exercise of my inherent power I allow this application u/s 482 Code of Criminal Procedure quash the order of the Magistrate and direct the Magistrate to appoint an independent supporter and place the property in dispute in his possession during the tendency of the proceedings u/s 145 Code of Criminal Procedure. The order dated 14-3-80 in revision is also quashed.