Jhunney Khan vs The City Magistrate and Others

M. Wahajuddin, J.—I have heard the Counsel for the parties. The Magistrate on the same day passed a preliminary order u/s 145, Code of Criminal Procedure, inviting written statements, and also an order u/s 146(1) Code of Criminal Procedure, attaching the property. The preliminary order is proper and the order of emergency attachment is also proper and he could pass such an order on the same day; but curiously enough in this order u/s 146(1) Code of Criminal Procedure, the Magistrate has also directed that the attachment to continue until the right to possess is determined by a competent court. This is one of the three alternatives contained in Section 146(1) Code of Criminal Procedure. But a reading of that section would clearly indicate that the Magistrate can pass such order for determination of the right by a competent court, only when he is unable to decide the matter himself and he has to record so. Obviously before written statements are filed and parties adduce evidence, no Magistrate can be in a position to say that he is unable to decide the matter himself. That part of the order dated 26-3-1983 is bad and it is quashed by this order. The order of attachment as well as the preliminary order is upheld and the Magistrate is directed to now proceed u/s 145(4) Code of Criminal Procedure, as provided in the law, and parties be afforded opportunity to file their written statement and lead their evidence and only after that the Magistrate can pass any order concerning the matter.

In the result, this application is partly allowed with the above directions.

A copy of this order may be given to the parties within two days on payment of usual charges.