R.K. Chowdhry, J. - (1.) On a police report dated 23-11-1955 proceedings Under Section 145, Criminal Procedure Code, were instituted between the residents of village Inderpur (here in after referred to as the first party) and those of village Cheruiya (to be described as the second party) in respect of certain agricultural plots which were subject to the fluvial action of the river Sarju flowing between the two villages- The Magistrate concerned passed the preliminary order u/Cl. (1) of section 145 on 25-11-1953, and at the same time he ordered attachment of the plots pending decision. This order was complied with by the circle Inspector of Police who submitted a report of compliance dated 2-1-1954. It appears that there was a dispute with regard to the possession of the plots in question, as shown by the respective written statements filed by the parties. The Circle Inspector's report also shows that the parties were at variance with each other on the question of possession of the plots. On what he calls a "perusal of the records and Inspection" the Circle Inspector, while executing the order of attachment passed by the Magistrate, expressed the opinion that the plots had been in cultivatory possession of the second party. It appears that u/Cl. (8) of the section the Magistrate passed an order for the sale of the standing crops of the plots, and that the second party purchased the crop for Rs. 3,000 and deposited the amount in court. Subsequently, holding that no dispute existed in respect of the plots, the Magistrate passed an order u/Cl. (5) of the section on 12-7-1954. On 2-8-1954 the second party preferred an application before the Magistrate for withdrawal of the aforesaid sum of Rs. 3,000. The Magistrate dismissed that application on 13-10 1954 holding that the applicants were not entitled to apply for withdrawal of the amount. The reason given for passing the order was that if such an application had been made by a third person he would not have been entitled to withdraw the amount. The second party then went up in revision to the District Magistrate who, by an order dated 18-4-1955, dismissed the revision on the ground of limitation. The second party has now come up in revision to this Court.
(2.) It was submitted by the Learned Counsel for the opposite party that after the passing of order u/Cl. (5) of section 145 the Magistrate became functus officio and he could not therefore pass any order with regard to the disposal of the attached property. The standing crops attached in the present case having been auctioned during the pendency of the proceedings, the property in the custody of the court was no doubt in the shape of the sale proceeds in deposit in the treasury. The argument therefore was that the Magistrate had no jurisdiction to pass any orders with regard to the disposal of the property on the application of the second party after concluding the proceedings by cancellation of the preliminary order u/Cl. (5) of the section. With this proposition I find myself unable to agree In my opinion the Magistrate does have such a jurisdiction both u/Cl. (8) of section 145 and Under Section 517, Cr.PC. The former provides specifically for making such order for the disposal of the sale proceeds of the property sold pending the proceedings as he thinks fit. section 517 of the Code also provides for a criminal court after conclusion of enquiry making such order as it thinks fit for the disposal of property in its custody. At the same time, although that jurisdiction is there and may well normally be exercised, the Magistrate will be debarred from doing so if in order that he may be able to pass suitable orders in exercise of that jurisdiction he has to enter into an enquiry which he had no power to make. For instance, if an order for disposal of sale proceeds u/Cl. (8) is not capable of being passed without deciding as to which of the two contending parties had been in possession of the property, the Magistrate would be precluded from passing that order after having passed an order of cancellation of the preliminary order u/Cl. (5) of the section. The reason for this view is that after the passing of the order contemplated by Cl. (5) the proceedings are stayed so that the Magistrate is no longer to enter into the question of the possession of the disputed property. In such circumstances, therefore, no order for disposal of the property can be passed by the Magistrate concerned, whether u/Cl. (8) of section 145 or Under Section 517 of the Code, after he has terminated proceedings u/Cl. (5) of section 145. On the other hand, if it be possible to dispose of an application for withdrawal of Sale-proceeds without having to adjudicate on an issue as to possession between the parties, the Magistrate will not be precluded from disposing of the application. In the present case the parties were at issue as to which of them was in possession of the disputed plots and of the crops growing therein. The Magistrate could not have therefore disposed of the application of the second party for withdrawal of the sale-proceeds without deciding the question of possession. The opinion expressed by the Circle Inspector while executing the warrant of attachment that the plots had been in possession of the second party was inadmissible. He had neither been required, nor had he the authority, to express any opinion as to which party was in possession of the plots. I am supported in this view of the matter by a decision of Agarwala, J. of this Court reported as Rajdeo Singh v. Emperor, 1948 AIR All. 425 . The view expressed in that case was as follows:- "When proceedings are dropped Under Section 145 (5), on the ground that there never existed a dispute likely to cause a breach of the peace the Magistrate's jurisdiction to act under the provisions of section 145, altogether ends, and as such he can only pass an incidental order relating to the attached property. If he enters into a minute examination as to the claims of the respective parties regarding the fact of actual possession on the date of the initial order he will be doing precisely what he is not empowered to do. Therefore, proceedings having been dropped there is no question of his taking any evidence as to who was in possession on the date of the preliminary order. If the record shows that the property was attached from the possession of a certain party, the Magistrate must be deemed to have inherent jurisdiction to restore possession of the property to that party. By doing so he will be restoring status quo ante. If, however, the record does not show this, then the only alternative for him is to pass an order that the attachment of the property should be lifted without saying in whose favour the release was to be effected. If the lifting of the attachment creates a danger to the breach of the peace, the Magistrate can start fresh proceedings Under Section 145(1). It is only in case of sale-proceeds of crops, in deposit in Court, that the Magistrate will direct that they will so remain in deposit till the claim of any party is declared by a competent civil court."
(3.) I would interpret the words "if the record shows" in the above passage as meaning "if the record shows indisputably" since otherwise the Magistrate would have to enter into the claims of the parties regarding possession. I would also add respectfully that it is not necessary to invoke the inherent jurisdiction of the Magistrate to restore possession of the property since the Code provides specifically for it u/Cl. (8) of section 145 and section 517. The Learned Counsel for the applicants cited the decision in Ram Lal Singh v. State, 1954 ALJ 425 . There is however nothing in that decision which runs counter to the view expressed by me above.;