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Gopal Krishna Goswami Vs. Bissey and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Reference No. 261 of 1957
Judge
Reported inAIR1959All671; 1959CriLJ1257
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 146
AppellantGopal Krishna Goswami
RespondentBissey and ors.
Appellant AdvocateR.P. Srivastava, Adv.
Respondent AdvocateD.D. Seth, Adv.
Excerpt:
criminal - attachment of property - section 146 of criminal procedure code, 1898 - magistrate may keep the property under attachment - has determination of the rights and possession of parties - not stated in section 146 - assumption - release of property in favour of successful party - decision of competent court set aside on appeal - property can be taken back and either retain it under attachment if the appellate court has not decided the rights of the parties or deliver its possession the other party in whose favour the appellate court has given the decision - the magistrate is no more functus officio. - .....however, set aside on appeal. the appellate court refrained from giving any decision in respect of title in favour of either of the parties; it simply dismissed the applicant's suit for declaration without holding that the title vested in the opposite parties.on this the magistrate re-attached the property, being of the view that neither party had obtained a decision in respect of title in ins favour and that the position was the same as when the order under section 146 was passed. this reference has been made by the sessions judge, who recommends that the order be quashed because the magistrate had no jurisdiction to reattach the property. it is true that section 146 does not contain any provision for reattach-ment of the property; but it also does not contain any provision for release.....
Judgment:
ORDER

M.C. Desai, J.

1. In proceedings under Section 145 Cr. P. C. the Magistrate being unable to decide which part was in possession kept the property under attachment under Section 146 Cr. P. C. Subsequently the applicant filed a suit for declaration of his title and it was decreed by the trial court. Thereupon the Magistrate released the property in his favour. The decree of the court was, however, set aside on appeal. The appellate court refrained from giving any decision in respect of title in favour of either of the parties; it simply dismissed the applicant's suit for declaration without holding that the title vested in the opposite parties.

On this the Magistrate re-attached the property, being of the view that neither party had obtained a decision in respect of title in Ins favour and that the position was the same as when the order under Section 146 was passed. This reference has been made by the Sessions Judge, who recommends that the order be quashed because the Magistrate had no jurisdiction to reattach the property. It is true that Section 146 does not contain any provision for reattach-ment of the property; but it also does not contain any provision for release of the property in favour of the party who obtains a declaration of title in his favour.

All that is laid down under Section 146 is that the Magistrate may keep the property under attachment until a competent court has- determined the rights of the parties thereto or the person entitled to possession thereof (I refer to the provisions of the old section which governs this case). What he should do after a competent court has determined the rights of the person entitled to possession is not stated in Section 146 and it is left to assumption that he should release the property in favour of the party who has been held to have the right to the property or to be entitled to its possession.

Just in the same way it can be left to assumption that if he releases the property in favour of the party successful in the original competent court he can take it back under attachment if the original court's decision is set aside on appeal, and either retain it under attachment if the appellate court has not decided the rights of either of the parties or deliver its possession to the other party in whose favour the appellate court has given the decision.

The Magistrate is no more functus officio after releasing the property in favour of the party successful in the original competent court than he was when he passed the order under Section 146. If he has jurisdiction to release the property in favour of the party succeeding in the original court, he must have jurisdiction to take it back from him on his losing in appeal. When the very basis of his right to be in possession is gone he cannot be allowed to retain possession.

Nobody should suffer OH account of a mistake of court and the party that is ultimately successful should not suffer because the original court had made a mistake regarding the rights of the parties. The Magistrate, therefore, rightly took back possession of the property from the applicant. Since neither party has been held entitled to it, it has been rightly kept under attachment under Section 146.

2. Whatever might have been the position before the Magistrate, what the applicant now wants is that I should hand over possession of the property to him even though his suit for declaration of his title has been dismissed by a competent court. Even if the Magistrate had no jurisdiction to keep the property under attachment, I would not exercise my revisional jurisdiction in order to deliver possession to a party who has been held by a competent court not to have any title to it. To restore the possession to the applicant would be an act of injustice rather than of justice. I therefore reject the reference.


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