- (1.) S. R. Bhargava, J. This revision, under Section 397 Cr. P. C. is directed against judgment and order dated 4. 8. 88, passed by Sessions Judge, Bareilly in Criminal appeal under Section 454 Cr. P. C. allowing the appeal and remanding the case back to the Magistrate to make inquiry under Section 452 Cr. P. C. and pass order regarding attached house accordingly.
(2.) FACTS giving rise to this revision are that in respect of a house preliminary order under Section 145 (1) Cr. P. C. was issued and on the basis of imminent danger of breach of peace, house was attached under Section 146 (1) Cr. P. C. on revision preferred before the Sessions Judge, proceedings under Sections 145 and 146 (1) Cr. P. C. were quashed. A revision was preferred in the High Court against order of the revisional Court quashing the proceedings. But that revision was dismissed. After dismissal of the revision and without any formal enquiry the Magistrate sent letter to the station officer the police station concerned for releasing the house and delivering the possession to the revisionist Jagdish Singh. Against that Krishna Pal Singh preferred appeal before the Sessions Judge who held that the learned Magistrate ought to have made inquiry and determined who was in possession of the house at the time of attachment. Then according to his finding he should have passed order for release and delivery of possession. With the finding learned Sessions Judge allowed the appeal and sent back the case to the Magistrate for inquiry and order. Being aggrieved Jagdish Singh has come to this court in revision. Chapter X of Criminal Procedure Code is about maintenance of public order and tranquility. Part-D of this Chapter relates to disputes as to immovable property.- Sections 145 and 146 are independent sections in this part. Once action is initiated under Section 145 by preliminary order under Section 145 (1) and it is followed by attachment on the ground of imminent danger of breach of peace under Section 146 (1), the Magistrate has to make inquiry regarding possession without reference to the merits of the claims of any of the parties to a right to possess the subject of dispute. After recording the finding regarding possession under Section 145 (4) the Magistrate has to follow his finding and pass order under Section 145 (6 ). In case the property has been attached under Section 146 (1) on the ground of imminent danger of breach of peace after his finding under Section 145 (4) the Magistrate has to deliver the property to the person who has been found by him to have been in possession. It is evident that inquiry under Section 145 (4) is quite independent of inquiry relating to any offence. When the proceedings are quashed and there is no inquiry under Section 145 (4) it cannot be said that inquiry has concluded. For these reasons despite the fact that after attachment under Section 146 (1) the property comes in the custody of the court, provisions of Section 452 Cr. P. C. are not attracted. After quashing of proceedings under Sections 145 and 146 Cr. P. C. if the Magistrate passes an order for delivery of property to any party or person, that order may not be said to be an order under Section 452 Cr. P. C. From this point of view it cannot be said that the order passed by the Magistrate directing the Station Officer of the Police Station concerned to deliver possession to revisionist Jagdish Singh was not appealable under Section 454 Cr. P. C.
(3.) BUT the Sessions Judge has power to treat an appeal as revision or a revision, as appeal if filed within limitation for appeal revision as the case may be. In the instant case even if the Sessions Judge proceeded to decide the matter brought before him as appeal, would not make any difference. When proceedings under Section 145 (1) followed by attachment under Section 146 (1) on the ground of imminent danger of breach of peace, are dropped or quashed, it cannot be forgotten that the property remains in the custody of the Magistrate and for washing of his hands the Magistrate is bound to bring proceedings to a logical end. Mere lifting of attachment would not relieve him of his accountability to the person from whose possession property was attached. Attachment under Section 146 (1) Cr. P. C. brings the situation of custodia legis. After attachment the property remains in the custody of the Court but that custody is on behalf of the person from whose possession it was attached. In the cases of Bhagwati Prasad v. Mahenara Nath Misra, 1979 U. P. Crl. LR 570 and Murli v. Paras Nath Shukla and another, 1982 ACR 23, it was held that after dropping of proceedings under Sec. 145 (5) Cr. P. C. the Magistrate can take advantage of Section 452 Cr. P. C. to deliver possession to the person found by him to be in possession at the time of attachment, after inquiry. In this revision only this much need be added that for bringing proceedings to logical end the Magistrate should make inquiry akin to Section 452 Cr. P. C. and find out the person or party in possession at the time of attachment and deliver back the possession of the property to him. In substance the order passed by the Sessions Judge does not require any major modification. For removal of ambiguities and difficulties about jurisdiction, this court can itself pass order directing the Magistrate to make inquiry akin to Section 452 Cr. P. C. for determining the person or party in possession at the time of attachment and directing delivery of property to such person or party.;