- (1.) K. Narayan, J. This revision is directed against the order rendered by the Addition al Sessions Judge, Ghazipur in Criminal Revision No. 392 of 1989 whereby the learned Sessions Judge setting aside the order dated 26- 9-1989 of the Magistrate had directed the Magistrate to proceed afresh with the proceedings under Section 145, Cr. P. C. according to law.
(2.) THE bare minimum facts material for the purpose of this revision may be men tioned in the form that on the proceedings under Section 145, Cr. P. C. initiated with a preliminary order dated 23-7-1986; the parties possibly filed written statements and thereafter an order of attachment was recorded on 19-3- 1989. In the meanwhile a civil suit was also brought on 22-9-1986. This civil suit appears to have been one for cancellation of the will purporting to have been made by one of the last owners. However, all that aspect except dates is not material for the purposes of present revision. The learned Magistrate by his order dated 26-9-1989 had directed that the proceed ings under Section 146, Cr. P. C. be dropped and the possession of the property in question be delivered to person from whose possession it was taken. He also recorded certain findings in the body of his order to the effect of the pendency of the civil suit and the joint nature of the title over the property. This order was challenged before the learned Sessions Judge. The learned Sessions Judge has, of course, made some efforts to record a finding as to whether it was really a matter of joint possession or not and what was the effect of the pendency of the suit but to my mind all that was unnecessary exercise. The Sessions Judge could have or should have disposed of the revision on a preliminary point which will be considered below. The other findings relating to fact etc. cannot be maintained at this stage. The direction of the learned Magistrate that the property would be delivered in favour of the person from whose possession it might have been taken itself was too vague to be given affect to. If the Magistrate could have known as to from whose possession the land has been taken, there would be no requirement of any decision in the proceedings under Section 145, Cr. P. C. The order of attachment is made only to avoid breach of peace and when the Magistrate is unable to decide as to who has been in possession. Once attachment is made, the property is custodia legis and can be delivered to one party or the other only after recording a legal finding on the question of possession of either party. This could not be left at the sweet will of the police officials or for the parties to decide by themselves by use of force. In fact, the latter position is to be avoided and this is very reason behind the formation of proceedings under Sections 145 and 146, Cr. P. C.
(3.) THE learned Counsel for the respondent has no doubt referred me the decisions in the case of Ibne Husain v. State of U. P. , 1989 AWC 942 and in the case of Sauraj Singh v. State, 1983 AWC 72. In the former decision, the question decided were whether the proceedings by way of waqf would amount to or compared with civil suit, and the applicability of Section 482, Cr. P. C. to the matter relating to the working of Mutwalli and the possibility of proceed ings under Section 147, Cr. P. C. and Section 107/117, Cr. P. C. simultaneously. None of these has any application to the present case. Similarly in the later decision, the decision was on the point as to whether fresh proceedings under Section 145, Cr. P. C. After certain transfers could be maintainable or not. Here again that aspect is not involved.;