Ram Newaj vs Kasi and Others

M. Wahajuddin, J.—Perused the preliminary order and the order of attachment and I do not find any error in the same. The argument urged is that after the Magistrate made an attachment u/s 146, Cr. P.C. he has become functus officio In that connection reliance was placed upon the case of Syed Zakir Husain Vs. State of U.P. and Another, , a single Judge pronouncement and the case of Gopi Krishna Tiwari v. State of U.P. 1978 CriLJ 340 another single Judge pronouncement holding that after attachment u/s 146, Cr. P.C. no power is left with the Magistrate for proceeding u/s 145, Cr. P.C. In this case reliance was also placed upon the case of Chandi Prasad and Others Vs. Om Prakash Kanodia and Others, a pronouncement of some Hon. Judge. The controversy stands completely resolved by a Division Bench pronouncement of this Court in Shital Prasad v. Raja Ram 1978 CriLJ 369 in which relying upon the Supreme Court view, as quoted in this ruling it was held that even after attachment Magistrate should decide the case u/s 145, Cr. P.C. as to who is in possession. In this ruling all earlier rulings including a Division Bench ruling of this Court were considered. In view of the same I hold that the Magistrate after emergency attachment u/s 146, Cr. P.C. does not become functus officio and has the jurisdiction to proceed and the application is therefore summarily rejected.