C. Jagannadhacharyulu, J.C.
1. This is a reference made by the Sessions Judge,. Manipur under Section 438 Cr.P.C. to set aside the order of the Sub-Divisional Magistrate, Phobia, passed in his N.F.I.R. Case 65 of 1965 dated 22.10.1965 attaching certain C. I. Sheets of a 'mandov' under Section 145 Cr.P.C.
2. The Sub-Divisional Magistrate, Thoubal, converted a proceeding before him in N.F.I.K. Case 65 of 1965 under Section 107 Cr.P.C. to one under Section 145 Cr.P.C. by his order dated 22.10.1965. He ordered the attachment of the disputed Mandov, its site and certain C.I. sheets of the 'mandov' which were previously seized by the Police and kept in the 'Jima' till the disposal of the case.
3. The petitioner filed Criminal Revision Petition under Section 437 Cr.P.C. in Criminal Revision Case 96 of 1965 on the file of the Sessions Judge, Manipur, and the learned Sessions Judge made a reference to this Court under Section 438 Cr.P.C. to set aside the Order of attachment of the C.I. sheets and the consequential order of interim disposal of the same.
4. The petitioner (first party) has no objection to the conversion of the proceedings under Section 107 Cr.P.C. into those under Section 145 Cr.P.C. But he objects to the attachment of C.I. sheets which were removed on 9.8.1965 from the roof of the 'mandov'. The sheets were seized by the Police on the same date of 9.8.1965 a few hours after the occurrence on production by the petitioner. The police moved at the instance of the first respondent.
5. The only question for determination Is whether the said C.I. sheets which were removed from the disputed 'Mandov' could 'be attached under Section 145 Cr.P.C. by the Magistrate. Section 145 (2) Cr.P.C. lays down that for the purpose of Section 145 Cr.P.C. the expression 'land or water' includes building, markets, fisheries, crops or other produce of land and the rents or profits of any such property. The proviso to Sub-section (4) of Section 145 Cr.P.C. provides that, if the Magistrate considers the case to be one of emergency, he may at any time attach the subject-matter of dispute pending his decision under the section.
Whether a crop, which was already cut, could be attached or not was the subject-matter of a number of decisions. In Deonandan Singh v. Thakur Singh AIR 1949 Pat 58 it was held that the crops which had already been cut and kept on a storing place, which was not the subject-matter of dispute was moveable property and that the Magistrate had no jurisdiction to attach the same under Section 145(4) Cr.P.C. To the same effect is the decision in J. Kamaraju v. K. Suryanarayana : AIR1953Ori99 , The contention of the learned Counsel for the petitioner is that on the analogy of cut crops and in view of the above decisions the C.I. Sheets, which were already removed by the petitioner and kept in his house, Cannot be said to be immovable property and that, therefore, they cannot be attachment’s counsel is that the C. I. sheets is question were seized by the police a law hours after the occurrence and that they must be deemed to be part of the 'mandov' liable to be attached as immovable property under Section 145 Cr.P.C. He relied on the decision reported in A. Rampus v. A. Subba Reddy : AIR1950Mad658 . In that case some trees were cut and severed a few hours or days before the preliminary order was passed. They were still lying on or near the land. It was held that they could be attached along with the land, since they would fall under the expression 'Crop or produce of land'.
This decision was also cited by the first respondent's counsel before the learned Sessions Judge who distinguished it on the ground that the C.I. sheets were removed more than 2 months before the proceedings were converted into those under Section 145 Cr.P.C. and that they were not lying on or near the 'mandov', but that they were seized on production by the petitioner from his house. The reasoning of the learned Sessions Judge is correct. But,' there are some more additional facts which go to show that the C.I. sheets cannot be attached. Clause (26) of Section 3 of the General Clauses Act defines 'immovable property' as including land, benefit to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth.
Section 3 of the Transfer of Property Act defines 'immovable property' as not including standing timber, growing crops or grass. So, normally a growing crop is not immovable property. Special provision was therefore made for crops or other produce of land in Section 145(2) Cr.P.C. and they are included in the expression 'land or water'. But as soon as the C.I. sheets were removed and taken away, they ceased to be immovable property and could not be attached under Section 145 Cr.P.C. So, the decisions relied on by the petitioner's counsel and followed by the Sessions Judge are more to the point.
7. In the result, the reference is accepted and the Order of the Magistrate directing attachment and the interim disposal of the C.I. sheets is set aside.