- (1.) THIS reference arises out of proceedings started under s. 145 of; the Criminal Procedure Code on a police report dated the 14th August, 1947. The report was to the effect that there was a dispute concerning 48 bighas of kham land known as Chejarwari situated in Nawalgarh between two parties consisting of Ram Sukh and his sons, Bhola, Kalia and Narain on the one hand and Jhabar, Hanuman, Har Dave and Ganpat on the other. It was alleged that the dispute regarding the said land was continuing between the parties for a long time, that the matter had aggravated and there was likelihood of a breach of the peace, and, therefore proceedings under sec. 145 of the Criminal Procedure Code should be taken out. The proceedings were commenced in the court of the Nazim and were later continued in the court of the Sub-Divisional Magistrate, Jhunjhunu. The property which was the subject matter of dispute was attached by the court. Both the parties produced their evidence and the case protracted for an unusually long time. Ultimately, on the 29th of August, 1952, the Sub-Divisional Magistrate passed an order that no dispute existed between the parties and he dropped the proceedings under, sub-sec. 5 of sec. 145 Criminal Procedure Code. While passing this order, however, he referred to the claims of the contesting parties and relying on the police report and other evidence, he ordered some part of the property to be given to the first party and some to the second one. The first party filed a revision Application before the Sessions Judge, Jhunjhunu questioning the validity of the Sub-Divisional Magistrate's order regarding the manner of the return of the property, The learned Sessions Judge has found the objection to be correct and has made the present reference.
(2.) THE main question which arises in the present case is as to what order the Sub-Divisional Magistrate ought to have passed regarding the property which was attached when he dropped the proceedings under sub-sec. 5 of sec. 145 Criminal Procedure Code on the basis that no dispute existed between the parties. It is quite clear that once the Magistrate drops the proceedings under sub-sec. 5 of sec. 145 of the Criminal Procedure Code and cancels his preliminary order, he becomes funtus officio and the matter comes to a stage as if no proceedings at all were initiated under this section, After this there is no power left in the Magistrate to go into the evidence of the parties or any other record to find out and decide as to which of the parties was in possession of the whole or part of the disputed property. If he proceeds to examine the evidence and goes through the claims of the respective parties regarding the fact of their actual possession of the subject of dispute on the date of the preliminary order, then he virtually re-starts the proceedings which he had already closed and which he cannot revive in the absence of a dispute between the parties. THE question still remains as to what the Magistrate should do with the attached property and the profits, if any, which might have accrued within the duration of the period of attachment. THE Sessions Judge has in this respect referred to the case of Kishan Sahai vs. State (1 ). In that case, the order of the Magistrate directing the attached property to be handed over to the opposite party was set aside following the decision in Dasharth vs. Tara Chand (2) and Narain and another vs. Chiguluri Venkiah and others (3), but it was not decided as to what should have been done to the property which was attached. In the case of Dashrath vs. Tara Chand (2) (A. I. R. 1925 Nag. 297.), it was held that "where a Magistrate attaches in cases of emergency the property which is the subject of dispute under sec. 145 and after recording evidence adduced by the parties to the proceeding comes to the conclusion that there is no danger of a breach of the peace and on that ground files the proceedings he has no jurisdiction to direct that the attached property should be delivered to one of the parties to the proceeding. In such a case the proper order is to direct that the property should remain in his custody and management pending decision of a civil court on the question of title. " In Madras High Court there seems to be some difference of opinion on this matter. In the case of G. Suryanaram vs. Shree Raja Ankineed Prasad Bahadur and other (4) (A. I. R. 1924 Mad. 795.), it was held that a Magistrate may pass orders directing the income or profits obtained by a sale of crops on the land to be given over to the person who raised the crops or from whose possession the property was taken. This case was not followed in Narasayya and another vs. Chiguluri Venkiah and others (3) (A. I. R. 1925 Mad. 1952. ). On the other hand reliance was placed on the cases of Chenga Reddi vs. Rama-swami Gundan (5) and Natesa Naicken vs. Raghavachuri (6) (A. I. R. 1925 Mad. 327.) and it was held that it was not right for the Magistrate after having dropped the proceedings to make any further orders. He must leave the parties to settle their rights in the manner they think best to do, in the meanwhile holding his hands. In this case the Magistrate was directed to keep the money in deposit in the court till one or other of the parties produced a decree of a civil court to show his right to that money. In the case of Mamidapalli Sattayya and other vs. Sankara Kutumhara Rao and others (7) (A. I. R. 1928 Mad. 859.), these cases were not particularly relied upon, but it was held that "after the proceedings under sec. 145 are dropped, the Magistrate should direct the receiver appointed by him to hand over the property to the person from whom possession was taken. " Thus there are two views; one which says that the property attached by the court should be restored to those from whose possession it is taken, while the other says that it should be kept in attachment by the court till the matter in dispute between the parties is decided by the civil court. In Oudh Chief court, the view expressed in Dashrath vs. Tara Chand (2) and Chenga Reddi vs. Ramaswami Gudan (5) (27 I. C. 152.), has been followed. In the case of Shahzada Daljit Singh vs. Mian Tej Singh (8) (A. I. R. 1939 Oudh 284.), it was held on the basis of the said two cases that "after proceedings under sec. 145 Criminal Procedure Code have been dropped the Magistrate has no jurisdiction to order delivery of the attached property to either party. The proper order for High Court in such a case is to continue attachment until the determination of the question of title, since release from attachment may result in a confict between the parties. " After referring to the case of Pigot and other vs. Ali Muhammud Mundul and others (9) (A. I. R. 1921 Cal. 30.), it was further observed in this case, that "the High Court has inherent power to give directidns as to the disposal of property which was attached and has been dealt with by a subordinate court in the course of proceedings instituted without jurisdiction under sec. 145 of the Criminal Procedure Code. Statutory effect has since been given to this decision by the enactment of sec. 561-A of the Code whereby nothing therein shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It seems clear therefore, that this court has power to pass an order that the attachment: shall continue, and in the circumstances of the case, this appears to be the more appropriate order to pass, since release from attachment might result in a conflict between the parties or their servants before action to prevent it could be taken by the authorities. " In this case reference has been made to the inherent power of the High Court under sec. 561-A, but neither in this case nor in the case of Dashrath vs. Tara Chcind (1) (A. I. R. 1925 Nag. 297.), nor in the case of Chenga Reddi vs. Ramaswami Gundan (2) (27 I. C. 152.) nor in the case of Narasayya and another vs. Chigulari Venkiah and others (3) (A. I. R. 1925 Mad. 1252.), it has been pointed out as to what is the authority under the law under which a Magistrate may keep the property or its proceeds in custody after dropping the proceedings under sub-sec. 5 of sec. 145 of the Criminal Procedure Code. The only section which authorises the Magistrate to continue to keep the disputed property under attachment until a competent civil court determines the rights of the parties thereto, or the person entitled to possession thereof is sec. 146 of the Code of Criminal Procedure. Under this section the Magistrate may retain this property in his custody only if he does not drop the proceedings and decides that none of the parties was in possession of the property at the date of the preliminary order or if he is unable to satisfy himself as to which of them was in real possession of the subject of dispute. In other words, the Magistrate is authorised to keep the property in his custody only if he found that a dispute existed at the date of the preliminary order and that it is still continuing. In case he drops the proceedings on the ground that no dispute existed at the date of the preliminary order or thereafter, then according to sec. 145 or sec. 146 of the Criminal Procedure Code, there is no authority left in him to continue to keep the attached property in his custody. Continution of such a property in custody would be tantamount to the continuation of the attachment itself. In the case of Shahzada Daljit Singh vs. Mian Tej Singh (4) (A. I. R. 1939 Oudh 284.), the learned Judges of the High Court had ordered the attachment to continue in order to avoid a conflict between the parties. The High Court has much wider powers, but if the Magistrate continues to keep the property in custody in view of a possible conflict between the parties, then his decision about the non-existence of a dispute cannot be said to be correct. To my mind, it is improper for the Magistrate in the first instance to attach the property in haste without being fully satisfied about the existence of a dispute between the parties and without an apprehension that a breach of peace is likely to take place without such attachment. Ordinarily therefore a situation should not arise in which the Magistrate may have to decide later that a dispute in fact never existed. If after the proceedings had started a situation arises whereby it appears that the dispute between the parties in fact never existed or that it has come to an end and the Magistrate drops the proceedings, then the attachment should also be lifted at the same time. If there is a clear note on the file of the Magistrate that the property was attached from the possession of a certain party, then the proper order in my opinion should be to restore the possession of the property to that party. The natural result arising out of the proceedings under sec. 145 Criminal Procedure Code after dropping or cancelling the proceedings, should be that the parties are restored to the possession which they occupied before the proceedings were started, and in order to bring about status quo, the party from whose possession the property is attached should receive it back from the court. This should, however, be done only when it is absolutely clear from the proceedings of the court itself, chat the property was taken from the possession of the party (to whom it is ordered to be restored at the time of attachment ). If there is no such record then the only order should be about the release of the property from attachment because the Magistrate has no power left to decide on the basis of the evidence of the parties as to which of them was in actual possession at the date of preliminary order. In the case of Jam Bhambho Khan vs. Makhdum Muhammad Hassan Shah (1) (A. I. R. 1942 Sind 117.), it was held that "once the Magistrate passes an order under sec, 145 (5) cancelling the order under sec. 145 (1) he has no further jurisdiction to adjudicate upon the dispute between the parties, and the parties must, so far as possible, be restored to the position which they occupied before the proceedings were started, not only with regard to the land, but with regard to the produce of the land or its proceeds. The Magistrate has therefore power to direct the crops or their proceeds to be restored to the party from whose possession they are taken. But circumstances may arise where it is not possible to put the parties in the position they occupied before the proceedings started, once the produce has been sold. In such cases parties should be directed to seek redress of their grievances in civil court. " This case supports the above view that the Magistrate has power to direct the disputed property to be restored to the party from whose possession it is taken, in case it is clear from the record of his proceedings that it was so taken from the possession of a certain party. In the case of Rajdeo Singh vs. Emperor (2) (A I. R. 1948 All. 427.), it was observed that "when proceedings are dropped under sec. 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 sec. 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 the 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 sec. 145 (1 ). I am in respectful agreement with these observations. In the present case, the Magistrate has ordered different portions of properties to be given to both the parties after discussing the evidence which obviously, he could not do in the light of the above discussion. When there was no dispute left between the parties, he should have simply lifted the attachment leaving it to the parties to settle their rights in a competent civil court or in any other lawful manner which they considered proper.
(3.) THE reference is accepted. THE order of the Magistrate is set aside. THE file be sent back to him with directions to release the disputed property under attachment. .;