DAMODAR DAS BABAJI Vs. HARIHAR NAHAK

JUDGEMENT

(1.) THIS Criminal Revision is directed against an order of the learned Sessions Judge of Ganjam -Boudh setting aside a final order under Section 145, Cr. P.C, and remanding the case for a fresh disposal.

(2.) ON 15.6.1974 the learned Sub -divisional Magistrate of Chatrapur passed an order under Section 144 Criminal Procedure Code restraining the opposite parties from interfering with the possession of the petitioner over the lands in dispute. The opposite parties filed counter on 6.8.1974. After hearing both the parties the learned Magistrate by his order dated 13.8.1974 converted the proceeding under Section 144 Criminal Procedure Code to one under Section 145 Criminal Procedure Code By the same order the lands in dispute were attached and a receiver was appointed. The parties were directed to file their written statements and produce evidence in support of their respective contentions. On 18.12.1974 the petitioner filed an application before the learned Magistrate stating therein that some of the opposite parties had filed a case before the Revenue Officer under Section 15 (1) (b) of the O.L.R. Act in O.L.R. Case No.41 of 1974 for a declaration of their tenancy right in respect, of the lands in dispute and for benefits under the O.L.R. Act and that the Revenue Officer after necessary enquiry had dismissed the case on 15.10.1974 holding that the lands in dispute were in cultivating possession of the petitioner and that no relationship of landlord and tenant existed between the parties.

(3.) ON a reference to the records it appears that the learned Magistrate by his order dated 13.8.1974 attached the subject matter of dispute and appointed a receiver in relation to the same. The power to attach the subject -matter of dispute and to appoint a receiver could be exercised only under the provisions of Section 146, Criminal Procedure Code Under the scheme of the new Code, once these steps were taken, the proceeding under Section 145, Criminal Procedure Code came to an end. The effect of the attachment is to place the property in custodia legis until a competent court has determined the rights of the parties. The Magistrate's jurisdiction is restricted only to the prevention of the breach of the peace. After the properties were placed in custodia legis there was no longer any danger of breach of the peace. The Magistrate had, therefore, no jurisdiction to continue the proceedings under Section 145, Criminal Procedure Code after attachment of the lands and appointment of a receiver in relation to the same. In 1976 Cut LR (Cri) 305:(1976 Cri LJ 2014) (Dandapani Pala v. Madan Mohan Pala) a Division Bench of this Court held that after the order of attachment and appointment of receiver is passed the proceeding under Section 145, Criminal Procedure Code comes to an end and the Magistrate cannot proceed further to enquire into the question of possession.