Skip to content


Jhabboo Vs. Laxmi Narayan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 332 of 1967
Judge
Reported inAIR1970All595; 1970CriLJ1459
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 145(5), 517, 547 and 561A
AppellantJhabboo
RespondentLaxmi Narayan and ors.
Appellant AdvocateS.C. Bajpai, Adv.
Respondent AdvocateJ.N. Misra, Adv.
DispositionRevision allowed
Excerpt:
.....enters into a minute examination as to the claims of the respective parties regarding the fact of actual possession on the date of the initial order he will be doing precisely what he is not empowered to do. it is well settled by authorities of this court that a magistrate acting under section 145, code of criminal procedure has inherent jurisdiction to pass incidental orders with regard to disposal of the attached property after the proceedings have been dropped by him under section 145, code of criminal procedure. the order of the magistrate dated 14-1-1966 therefore was perfectly valid in law......code.14. in the case of 1963 all wr (hc) 707, it was 'observed:'there is no provision in the code of criminal procedure under which the magistrate can take steps for the recovery of any amount from the supurdar. the recovery could be made through the civil court, ana the civil court would not pass any decree till the accounting is done i. e. the amount due from the supurdar is determined. the magistrate's order directing the supurdar to deposit a certain amount towards the profits utilised by him from the attached plots of which he was appointed supurdar by the magistrate is without jurisdiction.'i agree with the view expressed in these cases that there is no provision in the code of criminal procedure under which a magistrate can take steps for recovery of any amount from the.....
Judgment:

O.P. Trivedi, J.

1. This application in revision has been filed by Jhaoboo against Laxmi Narayan and others. The facts leading to this case may be summarised as follows:--

Sewak Ram, father of Laxmi Narain, opposite party No. 1 and Rajendra Narayan, opposite party No. 2 filed an application under Section 145, Cr. P. G., on September 4, 1964, against his son Rajendra Narayan, opposite party No. 2; upon which a preliminary order was passed by the Sub-Divisional Magistrate, Hardoi, on 12-11-1964 directing attachment of the agricultural land, subject-matter of dispute. On 1-2-1965, the agricultural plots mentioned in para. 1 of the application and certain crops detailed therein were placed in the custody of Jhabboo, applicant as a supurdar by S. I. Jamna Narain of Police Station, Baghauli and a duly executed supurdaginama was obtained from Jhabboo. Meanwhile, Sewak Ram had died and this fact was reported to the Sub-Divisional Magistrate on 12-11-1964, who passed the following order:--

'I have heard the learned counsel for the parties and I have seen the file. The applicant Sewak Ram has died. The opposite party is his son Rajendra Narayan. Now after the death of the applicant the question of succession of his legal heirs has to be decided from the competent Court. In this case the landed property including the crops in dispute has already been attached and given to the Supurdar. No further action under Section 145, Cr. P. C., appears necessary and as such I order that the proceedings under Section 145, Cr. P. C. be dropped.

The attached property should be released. The S. O. Baghauli will in the meantime keep a watchful eye over both parties as a case under Section 107, Cr. P. C. is already; pending between the parties.

Sd/- Illegible,

3-3-65.

Magistrate 1st Class,

HARDOI'

2. On 4-3-1965 a Robkar was issued from the Court of the said Magistrate to P. S. Baghauli containing the direction that the Supurdar may be asked to keep the property under attachment until the question as to who is the legal heir of Sewak Ram deceased is not decided and proper accounts regarding the attached property should be maintained by him. The report of the police on the back of this Robkar dated 5-3-1965 shows that intimation of this order by the Magistrate was given to the Supurdar as well as the two sons of Sewak Ram deceased. This order of the Magistrate appears to have been served on Rajendra Narayan, opposite party No. 2 on 9-3-1965.

3. On 8-3-1965, the said Magistrate directed the S. O. P. S. Baghauli that the attached property may be released in favour of the person from whose possession it was attached and a discharge receipt may be filed in Court.

4. A Robkar dated 8-3-1965 was accordingly sent from the Court concerned to P. S. Baghauli.

5. On 23-3-1965, a report was received from the police concerned by the Magistrate to the effect that the property had not been attached from the possession of any specific person and that the property was being claimed by both the sons of Sewak Ram deceased and further orders as regards release of the property were solicited from the Magistrate. On this, the Magistrate passed the following order on 25-3-1965;

'It is not specifically mentioned by the police from whose possession the property in dispute was attached. Now as Sewak Ram recorded tenant has died, it will be proper to release the attached property in favour of the legal heirs of the deceased, S. O. Baghauli be informed accordingly.

Sd/- Illegible.

Magistrate 1st Class,

HARDOI.

25-3-65.'

6. On 31-5-1965, Laxmi Narayan, opposite, party No. 1, applied before the Assistant Consolidation Officer Baghauli for division of the land of his deceased father, between the two brothers and they were later declared by the Consolidation Officer to be entitled to half and half share in the disputed properly of their deceased father.

7. Meanwhile on, 31-3-1965 Laxmi Narayan, Opposite party No. 1 moved an application before the Sub-Divisional Magistrate, Hardoi, saying that in spite of the order or release the Supurdar had in collusion with Rajendra Narayan, Opposite party No. 2 harvested the crop standing on the disputed land. He claimed that his mother, Rajendra Narayan and he himself were the legal heirs of his deceased father Sewak Ram and prayed that the Supurdar may be directed to deliver their share in the attached property; he may further be directed to deposit the prire of the crop wrongfully harvested and should be prosecuted under Sections 406 and 427, I. P. C.

8. On 20-11-1965, Laxmi Narain, opposite party No. 1 moved another application before the said Magistrate saying that although proceedings under Section 145, Or. P. C. had already been dropped the attached crop had not been actually released by then. It was prayed that the crop may be released. On this application the Magistrate directed the same day that a report may be called from the police as to whether the crop had been actually handed over to any one or not.

9. On 25-11-1965 a report was submitted by P. S. Baghauli stating that as no order for release of the property under attachment had, by then been received by the police, the land and the crop under attachment had not been released in favour of any one.

10. On 14-1-1966, the Magistrate passed an order to the effect that because the Consolidation Authorities had found Laxmi Narayaff and Rajendra Narayan opposite parties Nos. 1 and 2 to be the legal representatives of Sewak Ram deceased and directed mutation of their names over the disputed property in place of Sewak Ram, therefore, the land and the crop under attachment should be released in favour of the said legal representatives of Sewak Ram deceased namely opposite parties Nos. 1 and 2.

11. On 11-2-1966 Laxmi Narayan moved another application before the Magistrate stating that he had received only Rs. 75 from the Supurdar as his share of the crop attached and claimed that he was entitled to receive Rs. 94 more. Objections against this application were raised before the Magistrate by the Supurdar and Rajendra Narain, opposite party No. 2. It was urged that the Magistrate had no jurisdiction to direct the, Supurdar to deliver the attached property to any party and that any such release could be claimed only from the Civil Court. The order of the Magistrate directing the Supurdar to deposit income of the disputed land, was also challenged on the same ground. This argument was accepted by the Magistrate and he directed the parties to seek their relief from the Civil Court.

12. Aggrieved from this order, Laxmi Narayan, opposite party No. 1 filed an application before the Sessions Judge, Hardoi under Section 520, Cr. P. C. His application was treated as an appeal. The appeal was allowed by the Sessions Judge and the case was remanded by him to the Magistrate with the direction that he shall proceed to realise the entrusted property and if the Supurdar-fails to deliver it back, necessary steps should be taken against him for realisation. In addition, he should be prosecuted depending, upon the conduct which he puts forth after process for recovery has been issued. It is against this order of the Sessions Judge that Jhabboo has filed this application in revision before this Court. It is prayed that the order of the Magistrate may be quashed and after inquiry prosecution of opposite parties Nos. 1 and 2 may be ordered for having committed forgery of a supurdginama dated May 29, 1965.

13. The first submission in this revision by the learned counsel for the applicant was that the order of remand passed by the Sessions Judge did not possess the sanction of law because a Magistrate has no power to issue process for recovery of property which was placed in the custody of a Supurdar in attachment proceedings for realisation of usufruct of the property released by the Supurdar. It was submitted that it was only through a Civil Court decree that the property and the moneys placed in the custody of the Supurdar can be recovered. Reliance for this argument was placed on the case of Ajgoot Singh v. Rex : AIR1950All490 ; Bhagwan Singh v. Ganga Singh, 1963 All WR (HC) 707 and Baqridi v. Indra Vir Singh, 1966 All LJ 792. In the case of : AIR1950All490 it was observed that where a Supurdar appointed in proceedings under Section 145 undertook to produce the property in dispute made over to him when required by the Court and after the termination of the proceedings he was asked to deliver the property to the party entitled to possession but filed to deliver it and the Magistrate passed an order under Order 40, Rule 4, C. P. C. attaching Supurdar's movable and immovable property. The order of the Magistrate was illegal. It was observed that in the absence of any provision of law the provisions of the Civil Procedure Code cannot apply to any proceedings in connection with anything done or purporting to be done under the provisions of the Criminal Procedure Code.

14. In the case of 1963 All WR (HC) 707, it was 'observed:

'There is no provision in the Code of Criminal Procedure under which the Magistrate can take steps for the recovery of any amount from the Supurdar. The recovery could be made through the Civil Court, ana the civil court would not pass any decree till the accounting is done i. e. the amount due from the Supurdar is determined. The Magistrate's order directing the Supurdar to deposit a certain amount towards the profits utilised by him from the attached plots of which he was appointed Supurdar by the Magistrate is without jurisdiction.'

I agree with the view expressed in these cases that there is no provision in the Code of Criminal Procedure under which a Magistrate can take steps for recovery of any amount from the Supurdar except Section 547, Code of Criminal Procedure which is in these words:

'547. Any money (other than a, fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for shall be recoverable as if it were a fine.'

In this case, however, the point to be noted is that the Magistrate at no stage empowered the Supurdar to convert the crop which was entrusted to him by putting it to sale and the Magistrate at no stage passed any order directing the Supurdar to pay any monies in lieu of the crop entrusted to him in specific-shares to opposite parties Nos. 1 and 2. That being so, the provision of Section 547, Code of Criminal Procedure could not be pressed into service by the Magistrate. If the Supurdar failed to deliver the attached crop to the person or persons to whom he was directed to deliver the same by the Magistrate then in the circumstances the question would have been what was the liability of the Supurdar in terms of money. So far as that question is concerned I think it could be properly decided only by the Civil Court and the observations made in the aforesaid rulings would apply.

15. In that view of the matter the order of the Sessions Judge directing the Magistrate to proceed to realise the entrusted property and upon failure of the Supurdar to take steps for realisation of the same appears to be devoid of sanction of law and liable to be quashed.

16. The question arises in this case whether the Magistrate had jurisdiction to pass any order with regard to the disposal of the property which was placed under attachment. It was urged on behalf of the applicant before me that after proceedings had been dropped by the Magistrate under Section 145, Code of Criminal Procedure, the Magistrate had no further authority left in 'him to direct the Supurdar to deliver the attached property to opposite parties 1 and 2. There is to my mind no force in this submission. In the case of Smt. Kaniz Fatima Bibi v. State of Uttar Pradesh : AIR1963All148 it was held that the Magistrate has inherent powers to pass incidental orders and to restore the conditions that existed before he took action or in other words to wind up the proceedings by restoring, the status quo ante. It was further observed that the Magistrate has power after dropping the proceedings under Section 145, Code or Criminal Procedure, to pass orders with regard to disposal of property even under Section 517 of the Code of Criminal Procedure. In the case of Jagdish, Narain Chaube v. Basudeva Narain Singh, 1958 All WR (HC) 651 also similar observations were made. In that case a Magistrate had started proceedings under Section 145 (1) of the Code of Criminal Procedure by attachment of the disputed property. Subsequently holding that no dispute existed in respect of the property the Magistrate passed an order under Clause (5) of the section and dropped the proceedings. The question arose whether after dropping the proceedings the Magistrate had jurisdiction to pass an order with regard to disposal of the disputed property which was under attachment. It was observed that the Magistrate does have jurisdiction both under Clause (8) of Section 145 and Section 517 of the Code of Criminal Procedure to pass such an order. His Lordship quoted with approval the view which, was taken in the case of Emperor v. Rajdeo Singh : AIR1948All425 in the following words:

'When proceedings are dropped under Section 145 (5) on the ground that there never existed a dispute likely to cause a breach of the peace the Magistrate's jurisdiction to act under the provisions of Section 145 altogether ends, and as such he can only pass an incidental order relating to the attached property. If he enters into a minute examination as to the claims of the respective parties regarding the fact of actual possession on the date of the initial order he will be doing precisely what he is not empowered to do. Therefore, proceedings having been dropped there is no question of his taking any evidence as to who was in possession on the date of the preliminary order. If the record shows, that the property was attached from the possession of a certain party, the Magistrate must be deemed to have inherent jurisdiction to restore possession of the property to that party. By doing so he will be restoring the status quo ante. If, however, the record does not show this then the only alternative for him is to pass an order that the attachment of the property should be lifted without saying in whose favour the release was to be effected. If the lifting of the attachment creates a danger to the breach of the peace, the Magistrate can start, fresh proceedings under Section 145 (1). It is only in case of sale-proceeds of crops, in deposit in Court, that the Magistrate will direct that they will so remain in deposit till the claim of any party is declared by a competent civil court.'

The words used in the case of Rajdeo Singh, : AIR1948All425 'if the record shows' were interpreted by his Lordship (Chowdhry J.) in this case as implying 'if the record shows indisputably' for the reason that otherwise the Magistrate would have to enter into the claim regarding possession. It is well settled by authorities of this Court that a Magistrate acting under Section 145, Code of Criminal Procedure has inherent jurisdiction to pass incidental orders with regard to disposal of the attached property after the proceedings have been dropped by him under Section 145, Code of Criminal Procedure. I would, however, add the following with great respect to the observations made in the case of 1958 All WR (HC) 651 (Supra): To my mind a Magistrate who dropped proceedings under Section 145, Code of Criminal Procedure, can pass an order of disposal of the attached property under Section 517 of the Code of Criminal Procedure only in those cases where the proceedings have been dropped by him after reaching a conclusion under Section 145 (5) of the Code of Criminal Procedure and not earlier. The wordings of Section 517 (1) are these:

'517 (1). When an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal.... of any property or document produced before it......'

The word 'concluded' appearing in Section 517 (1) to my mind governs the applicability of that provision. The word 'conclusion' in Section 517 (1) implies the conclusion after full enquiry. If the proceedings are dropped or cancelled by a Magistrate before the stage of Sub-section (5) of Section 145 is reached then one cannot say that there has been a Full enquiry because a full enquiry implies an opportunity of hearing both the parties. Therefore if the proceedings are dropped by the Magistrate at any stage earlier than the stage of Section 145 (5) of the Code of Criminal Procedure then he cannot pass an order under Section 517 of the Code of Criminal Procedure because the enquiry has not been concluded. I am supported in this view by a Division Bench authority of the Calcutta High Court: Karunamoy v. Kalika Prosad : AIR1950Cal369 . In that case it was observed:

'The word 'concluded' in Section 517 has been used to mean conclusion after full enquiry.'

However, with great respect, I do not agree with the view expressed in that case to the effect that 'the cancellation of proceedings under Sub-section (5) of Section 145 cannot be considered to amount to conclusion of enquiry.' The enquiry under Sub-section (5) of Section 145 of the Code of Criminal Procedure on the question about the existence of a dispute between the parties is made by a Magistrate after hearing both the parties and on consideration of the material placed before him by the two sides. If as a result of such enquiry he comes to the conclusion that no dispute exists then the only final order that a Magistrate must pass in the circumstances is the order dropping the proceedings because having come to the conclusion that the dispute does not exist after hearing both the parties the Magistrate has no jurisdiction to proceed under Sub-section (6) of Section 145 of the Code of Criminal Procedure. It is therefore clear that when an order under Sub-section (5) of Section 145 is passed it is an order on the conclusion of enquiry. That being so, when the proceedings are dropped on the passing of an order under Section 145 (5), the provision of Section 517 of the Code of Criminal Procedure can be invoked and pressed into service by him for passing a final order regarding disposal of the attached property.

17. In the present case the stage of Sub-section (5) of Section 145 had not been reached and the proceedings under Section 145 were dropped much earlier. Therefore it cannot be said that the enquiry had concluded within the meaning of Section 517 of the Code of Criminal Procedure and therefore in this case the Magistrate could not pass an order directing the Supurdar to deliver possession of the attached property to any specific party or parties under Section 517 of the Code of Criminal Procedure but indisputably the Magistrate could, pass such an order under his inherent powers as an incidental order even after the proceedings had been dropped. The order of the Magistrate dated 14-1-1966 therefore was perfectly valid in law. That order was apparently based on the decision of the Consolidation authorities dated 31-5-1965 who had declared opposite parties Nos. 1 and 2 to be en-titled to half and half share in the property of their deceased father. The Magistrate could take that decision of a competent court into account in passing the incidental order with regard to the property under attachment. These observations answer the doubts and misgivings which appeared to have arisen in the mind of the Magistrate regarding his competency to pass an order with respect to disposal of the property under attachment.

18. However, the impugned order of the learned Sessions Judge dated 21-10-1967 also is liable to be quashed for reasons already stated.

19. I allow the revision and quash the order of the Sessions Judge dated 21-10-1967. The Magistrate may now serve his order dated 14-1-1966 on the applicant-Supurdar and proceed in accordance with law.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //