Yadram vs State of U.P. and Another

M. Wahajuddin, J.—This is an application u/s 482, Code of Criminal Procedure, praying that the orders dated 31-1-1979 and 1-10-1980 of the Magistrate and the Sessions Judge in revision (Annexures ''1'' and ''2'') may be set aside.

One of the submissions made is that as the Magistrate made an emergency attachment u/s 146(1), Code of Criminal Procedure, he thereafter became functus officio. It was averred in paragraph 7 of the application that the Magistrate having passed orders of attachment on the ground that he was unable to determine as to which party was in possession, became functus officio. Any copy of the order of attachment has not been annexed deliberately. The submissions made on behalf of the opposite side is that an emergency attachment was made and any such order that the Magistrate is not able to determine the dispute was not passed. From the final order of the Magistrate, it is not borne out that the Magistrate had passed any order that he was unable to satisfy himself on the matter of possession and the attachment was made with a direction that it has to continue until a competent court determines the right of the parties. If the applicant desired to base any argument on any submission that the Magistrate held that he was unable to satisfy himself on possession and directed that the matter be got determined by any competent court and attachment is to continue till then, the order of attachment should have been annexed with the application.

It is, further, submitted that as soon as the Magistrate made an emergency attachment, he became functus officio. This, however, is not the correct position of law. Under the provisions of Section 146(1), Code of Criminal Procedure emergency attachment can be made at any stage and the Magistrate has different courses open to him. If he can decide the matter of possession himself, he can proceed to decide the matter u/s 145(4), Code of Criminal Procedure. If on the other hand he holds that he is unable to satisfy himself, on the matter of possession, he will make attachment with a direction that the matter may be got determined by the parties by any competent court. It was held in the case of Kshetra Mohan Sarkar Vs. Paran Chandra Mondal, , that any proceeding u/s 145, Code of Criminal Procedure, does not come to an end after any order of attachment u/s 146(1), Code of Criminal Procedure. The matter has been finally concluded in the case of Mathuralal Vs. Bhanwarlal and Another, , holding that on emergency attachment, the Magistrate''s jurisdiction to proceed does not end and he need not wait for determination of rights of parties by competent court. The first ground of the applicant has no force.

The applicant''s counsel urged that in any case if the Magistrate was going to decide the matter himself, after the present opposite side preferred any application, proper opportunity should have been afforded to the applicant, which was not done. The learned Counsel for the opposite party submitted that such a ground is not open, as not pleaded in the application. I have considered the matter, while it may not have been pleaded in so many express words, the matter was raised by pleading that the Magistrate could pass any order only after hearing both the parties. In the counter-affidavit it is not stated that the applicant or his counsel were heard by the Magistrate, when he passed the final order on 31-1-1979. The averments in the counter-affidavit on the point are vague. Apart from it, it is self evident from the judgment of the Magistrate dated 3-1-1979 that the opposite party (the present applicant) was neither present nor was heard, when this order was passed. True that the opposite party had filed some documents earlier and the same as well as other materials have been considered by the Magistrate, but that in itself is not sufficient. The fundamental principles of justice is that before deciding any matter on merits, parties should have notice as to afford full opportunity to be heard at the final stage and orders should not be ''passed behind the back of any party. It would appear that on 22-8-1978 the present applicant filed an application citing certain rulings and stating that the court is functus officio and thereafter absented. The matter lingered on. Receiver appointed did not turn up inspite of notice given at the instance of the opposite party. The opposite party preferred applications citing the above rulings (supra) and the Magistrate thereafter proceeded to pronounce the judgment, after hearing the opposite party alone and simply observing that the applicant after preferring the application dated 22-8-1978 has completely slept over the matter. It would be an abuse of the process of law and a gross denial of justice to decide a matter of the present nature, withould fresh notice to the present applicant that the Magistrate is going to dispose of and determine the matter of possession and the parties should appear on the date fixed.

I, therefore, simply for such consideration allow the application u/s 482, Code of Criminal Procedure, and quash the order dated 31-1-1979 of the Magistrate and 1-10-1980 of the Additional Sessions Judge in revision and direct that the Magistrate may decide the question of possession u/s 145(4), Code of Criminal Procedure, after giving proper notice to the parties and affording them full opportunity afresh.

Application allowed.