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Judgment
Umeshwar Pandey, J.—Heard learned counsel for the petitioner and the learned A.G.A.
In this petition, the order dated 1.4.2000 passed by the sub Divisional Magistrate, Gautambudh Nagar has been challenged. As per the material made available by the petitioner before this Court it is evident that the Magistrate is seized with a matter u/s 145 Cr.P.C. in which the preliminary order has been passed. An attachment order u/s 146(1) Cr.P.C. dated 18.2.2005 was also passed. In a petition u/s 482 Cr.P.C. before this Court, the said attachment order passed by the Magistrate has been stayed. The stay order was communicated to said court vide Annexure-2 by the petitioner on which a direction was given by the Sub divisional Magistrate to the Station Officer of the concerned police station station that the petitioner and his brother have half and half share in the property in dispute and, therefore, looking to the law and order situation the standing crops be harvested and distributed half among the two brothers.
The learned counsel by challenging the aforesaid order of the magistrate submits that this order is incompetent and he cannot give a direction of such nature except as provided under Sub-section (8) of Section 145 Cr.P.C.
It is true that while the Magistrate is seized with the proceeding u/s 145 of the Code, he is required to adhere to the provision of that Section and proceed accordingly. Sub-section 145 Cr.P.C. provides as below.
"If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in proceeding under this Section the pending before him, is subject to speedy and natural decay, he may make an order for the proper custody of sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, of the sale-proceeds thereof, as he thinks fit."
In the light of the aforesaid provision the Magistrate dealing with the proceedings u/s 145 Cr.P.C. if finds that any crop is also a matter of dispute in such proceeding before him and that is subject to natural decay, he may pass order for its proper custody or sale etc. and after the enquiry is completed he shall make an order for disposal of such property or its sale proceeds. Here the standing crop is obviously subject to speedy and natural decay and the Magistrate in such a matter should have passed an order under Sub-section (8) of the Code referred to above. The impugned order direction the police to get the crop harvested and distributed among the two brothers does not appear to be an order in consequence with the provisions of the Code aforesaid. He has to strictly follow the procedure as prescribed under law.
In view of the aforesaid facts and circumstances, this petition is disposed of with a direction to sub Divisional Magistrate concerned to pass such order as required from him under Sub-section (8) of Section 145 Cr.P.C. and shall dispose of or deliver the property or its proceed to the person entitled to it in accordance with law only upon completion of the pending enquiry. The contention of the learned counsel that there are three share-holders and they are all entitled to the disputed crop, shall also be kept in view by the Magistrate while passing the final order of disposal of the property and if he finds that there are three share-holders entitled to it, the property shall be divided accordingly. The Magistrate shall also see that the matter pending before him u/s 145 Cr.P.C. is disposed of expenditiously.