- (1.) THIS petition under Section 482, Code of Criminal Procedure had been referred to a Larger Bench by dated 24th July, 1978 by the learned Single Judge of this court who did not feel inclined to agree with the view expressed in the case Ramadhin v. Shyama Devi and others, 1977 Cr LJ 453.
(2.) THE short facts are that in respect of plot Nos. 37 38, 323 and 325 of village Mohrania, district Kheri, an application for proceedings under Section 145, Code of Criminal Procedure was made by Smt. Jagdei opposite party No. I whereupon a police report was submitted and a preliminary order under Section 145, Code of Criminal Procedure was passed by the concerned Executive Magistrate on 30-11-1976 calling upon the parties for filing their written statements in respect of their claims. While the proceedings were pending, Smt. Jagdei again applied for attachment of the property under Section 146, Code of Criminal Procedure. The leamed Magistrate having been satisfied with the existence of an emergency likely 10 cause a breach of peace passed an order on 7-12-1976 under Section 146 (1) Code of Criminal Procedure directing the property to be attached. The Police attached the property and placed it in the Supurdegi of a Supurdar. Subsequently on 22-2-1977 the learned Magistrate formed an opinion that the attachment could continue until the competent court determined the rights of the parties with regard to the person entitled to possession of the pro-petty, and on that basis directed that the record of the case under Section 145, Code of Criminal Procedure be consigned to the record room. In other words, the Magistrate refused to exercise any further jurisdiction in the case.
(3.) THE matter was challenged in revision before the learned Sessions Judge who held that the order dated 22-2-1 77 was only a routine order and was not a final order, and therefore, the revision was not maintainable. When the case figured before this court, reliance was placed on behalf of the applicant on the case of Ram Adhin v. Shyama Devi and others (supra ). The view taken therein was that in the event of an attachment on existence of emergency, the Magistrate was bound nevertheless, to examine the question of possession of the parties over the property and thereafter pass a final order in the case. Brother From Prakash, J. however, was of the opinion this in the case of emergency when the property is attached, it is not necessary for him to take further proceeding to determine the possession of any of the parties under Section 145 (4), Code of Criminal Procedure. In that view of the matter, he directed the case to be laid before a larger Bench, that is how the case is before us.;