- (1.) This revision arises out of a case under Section 145 of the Code of Criminal Procedure. Triloki pande and others, hereinafter called first party, made an application under Section 145 Code of Criminal Procedure that they were in possession of certain plots and that the opposite parties wanted to dispossess them from these plots forcibly and on account of it there was an apprehension of the breach of the peace. These plots were attached and a preliminary order was passed by the learned Magistrate directing the parties concerned to file their written statements with regard to their possession. Both the parties alleged their possession over these plots. The learned Magistrate recorded some evidence in this case but before he could conclude the enquiry a suit was filed by the opposite party in the revenue court for a declaration that they were in possession of these plots as khudkasht holders. The trial court decided that case in favour of the opposite parties. A copy of this judgment was filed before the learned Magistrate. He therefore recorded some further evidence in the case and ultimately decided it on the basis of the judgment of the revenue court without applying his mind and without discussing the evidence taken by him as to which party was in possession of the disputed plots on the date of the preliminary order. It may be mentioned here that the judgment of the first court was set aside in appeal by the Commissioner and that decision was upheld by the Board of Revenue. The applicants filed a revision against the order of the learned Magistrate directing the release of the attachment in favour of the opposite parties. It was contended on their behalf that the learned Magistrate was incorrect in deciding the case Under Section 145, Code of Criminal Procedure on the basis of the judgment of the revenue court without applying his own mind to the evidence taken by him and deciding independently as to which party was in possession on the date of the preliminary order. The learned Sessions Judge dismissed the revision and the present revision has been filed against that order.
(2.) I have heard the learned Counsel for the applicants and the opposite party and I am of opinion that this revision should be allowed. It appears from a perusal of the judgment of the learned Magistrate that he was under the impression that the disputed plots has been attached under the provisions of Section 146, Code of Criminal Procedure whereas in fact the attachment was made under the provision of Section 145, Code of Criminal Procedure Section 146 was obviously inapplicable to the present case. According to Section 146 the attachment could be maintained if a magistrate after considering the evidence produced before him in a proceeding Under Section 145 Code of Criminal Procedure was unable to satisfy himself as to which of the parties was in possession on the date of the preliminary order. In the present case, as has already been pointed out above, the magistrate did not enter into the question of possession at all and based his decision solely on the judgment of the revenue court which, as I have mentioned above, was subsequently set aside, According to Sub-section (4) of Section 145 it was incumbent on the learned Magistrate to decide for himself after considering the entire evidence on the record as to which of the parties was in possession on the date of the preliminary order and then direct the release of the attached property in favour of the party which was found in possession on that date. This Sub-section does not contemplate that the magistrate is bound by the decision of the revenue court on the question of possession and is not to decide for himself as to which party was in possession on the relevant date. No doubt it was open to the Magistrate to take into consideration the judgment of the revenue court in deciding the question of possession, but then he had to consider that evidence along with the other evidence which had been produced in the case and then decide for himself the question of possession. There is no doubt that in the present case the learned Magistrate has not complied with the provisions of this Sub-section and his order cannot therefore be maintained.
(3.) I, therefore, allow this revision set aside the order of the court below and direct that the case shall be sent back to the learned Magistrate concerned for disposal according to law. The property which is under attachment shall continue to be so till the decision of the case.;