Trilochan Das vs Jogeshwar Das

Courts, J.—This application arises, out of a proceeding u/s 145 of the Criminal Procedure Code. Proceedings were started on the 22nd November on a Police report and the Sub-Inspector of Bahragora was directed to attach the crop on the land, to reap it when ripe, and to secure it until farther orders were passed. The date fixed for hearing was the 9th of December. Both parties on the 9th of December applied for time, and time was allowed until the 12th of December. On the 12th December the first party alone was present and prayed for time. On this the order of the Magistrate was "proceeding struck off. Crop to remain in the Sub-Inspector''s custody till orders in respect of it are passed by competent Civil Court." The next order of the Magistrate is dated the 19th December on which date the second party filed a petition, praying for release of the attached crops. The petition was not disposed of on that date, the order of the Magistrate was that this would be done when he knew what the value of the attached crop was and when the second party deposited the money in case of proof afterwards that he was not entitled to the crops. He directed the Sub-Inspector to report on the 3rd January. On the 3rd January the first party prayed that the crops might be made over to him. Finally, on the 27th January, the 1st party appeared, and the Magistrate after looking at Settlement papers ordered the crops to be made over to the 1st party. Against the order of the 12th December and all subsequent orders applications have been filed that they should be set aside on the ground that they are illegal and have been passed without jurisdiction.

It appears to us perfectly clear that after the proceeding had been struck off and there were no proceedings before the Magistrate, he acted entirely without jurisdiction in passing orders with regard to crops which were not then the subject-matter of any proceeding. In addition to this, however, his order directing the proceeding to be struck off was also without jurisdiction. The proceeding was u/s 145 and it was open to the Magistrate to pass orders either u/s 145 or u/s 146. He certainly did not pass an order u/s 146, and it does not appear that he has passed an order u/s 145. The whole of the orders from and including the order passed on the 12th December are without jurisdiction, and should, in my opinion, be set aside, with a direction that the Magistrate should take up the proceeding from the point at which they were before the 12th December and proceed with them in accordance with law.

Atkinson, J.

I agree.