Syed Zakir Husain vs State of U.P. and Another

Mahavir Singh, J.—This is a revision by the applicant parties u/s 145, Cr. P.C. proceedings against an order of the Additional City Magistrate dated 20-5-1976 ordering the return of the possession of the property in question to the opposite party No. 1 who is respondent No. 2 in the present revision.

The relevant facts are that the Magistrate had initiated proceedings u/s 145, Cr. P.C. about the property described in that case in view of the apprehension of breach of peace about the possession of the same between the two parties. Thereafter on 15-3-75 he further passed an order u/s 146, Cr. P.C. attaching the property in question because of immediate apprehension of breach of peace. The property was actually attached on 16-3-75 Thereafter in pursuance of the order dated 15-3-75 requiring the parties to file documents and affidavits in support of their respective contentions, the parties filed papers and affidavits and on the consideration of the same the learned Magistrate held that as the case was pending in the Civil Court the question of title could not be disposed of in this case. However, he held that respondent No. 2 was in possession prior to the date when the order u/s 145, Cr. P.C. was issued. Accordingly he ordered that the possession be returned to the respondent No. 2, and until the applicant gets a contrary order from a competent Court, he was directed not to interfere in his possession.

In revision it is contended that the learned Magistrate had not followed the provisions of the Code of Criminal Procedure. It appears that he was quite ignorant about the change of the Cri. P. C, to the new Code,

I heard the learned Counsel for the parties and have also gone through the record. The contention raised by the learned Counsel for the applicant has a force,

If a property In respect of which proceedings u/s 145, Cr. P.C. had been initiated is further attached u/s 146, Cr. P, C. the Court becomes functus officio. It cannot take further proceedings to find as to which party was In possession and then order delivery of possession of the same to any one of those whom he found to be in possession. It was only under old Cr. P. C, that a Magistrate could pass such an order even after the attachment of the property in question. It is clear that the Magistrate had no idea of the change of law made in new Cr. P.C. Hence the order is quite illegal and so it has to be quashed.

In the result the revision is allowed. The order dated 20-5-1976 passed by the Additional City Magistrate is quashed. The possession, if given over to the respondent No. 2, shall be taken back by the learned Magistrate and then he will pass orders for making proper arrangement for the same as required u/s 146(2), Cr. P.C.