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Kater Singh and anr. Vs. Jahan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1974CriLJ1316
AppellantKater Singh and anr.
RespondentJahan Singh and ors.
Cases ReferredJhabboo v. Laxmi Narayan
Excerpt:
- - 1, 250 was, however, not deposited as directed by the learned magistrate and an application was made alleging that the crop in question had been badly damaged on account of rain and could not be sold for a reasonable price and hence katar singh was not in a position to deposit the said amount. if the supurdar failed to deliver the attached crop to the person or persons to whom he was directed to deliver then in the circumstances the question would have been what was the liability of the supurdar in terms of money. in these circumstances recourse could be legally had to the procedure prescribed under section 547 of the code as the condition precedent for the applicability of that section stands fully satisfied......the validity of the impugned order was challenged on the ground that there was no provision in the code of criminal procedure authorising or empowering the magistrate to direct the recovery of the amount from the revisionists in their capacity as supurdars of the attached sugarcane crop. reliance was placed on the principle laid down in bagridi v. indra vir singh 1966 all lj 792 : 1968 cri lj 1531 (2)). the argument found favour with the learned judge who made a reference to this court for quashing the order, dated 16-7-1971. the case has been referred to this bench as the learned single judge felt that baqridi's case (supra) required reconsideration.3. section 145, criminal procedure code empowers the magistrate to attach the subject of the dispute pending decision in the proceeding. it.....
Judgment:

K.N. Seth, J.

1. On an application of Jahan Singh and others proceedings under Section 145, Criminal Procedure Code were initiated with respect to the sugarcane crop standing on the disputed plots. The learned Magistrate passed a preliminary order under Section 145(1), Criminal Procedure Code and also directed that the disputed sugarcane crop be attached. After attachment the crop was given in the supurdagi of one Vijai Pal. Jahan Singh and others (First party) moved the Magistrate that the crop be auctioned whereas Katar Singh and Ra-ghubir Singh (second party) applied that the Supurdar be changed as he belonged to the group of the first party. The learned Magistrate passed an order on 11-5-1971. with the consent of the parties, that the standing sugarcane crop in dispute be given in the Supurdagi of Katar Singh and Raghubir Singh (second party) and that after harvesting the crop Katar Singh shall deposit Rs. 1, 250 in court by 10-6-1971. The second party entered into possession of the attached crop in their capacity as the Supurdars. The amount of Rs. 1, 250 was, however, not deposited as directed by the learned Magistrate and an application was made alleging that the crop in question had been badly damaged on account of rain and could not be sold for a reasonable price and hence Katar Singh was not in a position to deposit the said amount. The matter came up before the learned Magistrate who by an order, dated 9-7-1971 extended the time for depositing the amount of Rs. 1, 250 by 16-7-1971. As the amount was not deposited even by the extended time, the learned Magistrate on 16-7-1971 passed an order for issuance of a recovery warrant in respect of the aforesaid amount.

2. In a revision filed by Katar Singh and Raghubir Singh the validity of the impugned order was challenged on the ground that there was no provision in the Code of Criminal Procedure authorising or empowering the Magistrate to direct the recovery of the amount from the revisionists in their capacity as Supurdars of the attached sugarcane crop. Reliance was placed on the principle laid down in Bagridi v. Indra Vir Singh 1966 All LJ 792 : 1968 Cri LJ 1531 (2)). The argument found favour with the learned Judge who made a reference to this Court for quashing the order, dated 16-7-1971. The case has been referred to this Bench as the learned Single Judge felt that Baqridi's case (supra) required reconsideration.

3. Section 145, Criminal Procedure Code empowers the Magistrate to attach the subject of the dispute pending decision in the proceeding. It further provides that if the Magistrate is of opinion that any crop or other produce of the property is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale proceeds thereof, as he thinks fit. It was in exercise of this power that the Magistrate attached the sugarcane crop which was the subject-matter of the dispute and ultimately gave it in the Supurdagi of the revisionists with a stipulation that a sum of Rs. 1, 250 being the estimated value of the crop, shall be deposited by a certain date. This order was passed with the consent of the parties. In pursuance of the aforesaid order the revisionists entered into possession of the sugarcane crop as Supurdars. It may be noticed that the amount which the Supurdars had to deposit was an ascertained sum and no accounting was involved. The question is whether the Magistrate had the power to recover this amount when the Supurdars committed default.

4. It was contended on behalf of the revisionists that there is no provision in the Code of Criminal Procedure under which the Magistrate could take steps for the recovery of any amount from the Supurdars. Reliance was placed on Baqridi's case. 1966 All LJ 792 : (1968 Cri LJ 1531 (2)) (supra) which in its turn had followed the view expressed in Bhagwan Singh v. Ganga Singh 1963 All WR (HC) 707. It appears that in Baqridi's case a plot of land was attached under Section 146, Criminal Procedure Code and given in the Supurdagi of two persons. When the proceeding under Section 145, Criminal Procedure Code was finally decided, an application was made by the successful party praying that the Supurdars be directed to render accounts about the income from the disputed land during the period it remained under attachment and in their custody. The learned Magistrate held an enquiry into the matter and, after allowing the parties to produce their evidence, arrived at the conclusion that the Supurdars were liable to give account of the crops raised by them and after accounting determined their liability. It was in these circumstances that this Court held that the order of the Magistrate directing the Supurdars to deposit a certain amounts towards the profits from the attached plots was without jurisdiction as in summary proceeding it could not be possible for the Magistrate to determine what amount was actually recoverable from the Supurdar and the proper forum for claiming the account was the civil Court. Bhagwan Singh's case, 1963 All WR (HC) 707 (supra) is based on the same reasoning. The ratio of these decisions appears to be that where accounting has to be gone into before fixing the liability of the supurdar, the Magistrate has no jurisdiction to embark on that enquiry and he is not competent to enforce his order passed after such an enquiry.

5. It was contended on behalf of the opposite parties that in the instant case no question of accounting was involved as the amount had been ascertained when the order for delivery of possession of the attached crop was made in favour of the revisionists as Supurdars with the consent of the contending parties. That very order directed that the amount in question shall be deposited by a certain date. In such a situation the Magistrate was competent to take action under Section 547 of the Code which provides that any money (other than a fine) payable by virtue of any order made under the Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine. There appears to be considerable merit in the contention raised by the opposite parties. The order dated 11-5-1971, under which the revisionists were appointed Supurdars and a direction was given with regard to the deposit of Rs. 1, 250, was an order passed under Sub-Section (8) of Section 145, Criminal Procedure Code. While appointing Supurdars of the attached crop it was within the competence of the Magistrate to fix the amount which the Supurdar were required to deposit in court. The power to appoint a Supurdar embraces within its ambit the power to specify the terms and conditions under which the Supurdars shall function in respect of the property delivered to his custody. If by that order the Supurdar is required to deposit a certain sum of money as the value of the property which is delivered in his custody and he commits default, the Magistrate would not be helpless and he would be competent to proceed against the defaulting Supurdar under Section 547, Criminal Procedure Code as the money was payable by virtue of an order made under the Code. It may not be open to the Magistrate to fix the liability of the Supurdar after an elaborate accounting but where the liability of the Supurdar is pre-determined, we find no prohibition, either in the Criminal Procedure Code or under any other law, for the recovery of such an amount by taking recourse to Section 547 of the Code.

6. Our attention was invited to the decision of a learned single Judge of this Court in the case of Jhabboo v. Laxmi Narayan AIR 1970 All 595 : 1970 Cri LJ 1459. In that case also one of the questions considered was whether a Magistrate can take steps for the recovery of any amount from the Supurdar. It was held that where the Magistrate at no stage empowered the Supurdar to convert the crop which was en-trusted to him in a proceeding under Section 145 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 the parties, the provision of Section 547 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 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, it could be properly decided by the Civil Court. It ap-pears from the facts of the aforesaid case that certain plots and the crops standing thereon were placed in the custody of a Supurdar. The Supurdar at no stage was empowered to convert the crop which was entrusted to him by putting it to sale or to pay any money to the parties concerned in lieu of the crop entrusted to him. In such circumstances it could not be said that any money was payable by the Supurdar by virtue of any order made under the Code and, therefore, the Court rightly came to the conclusion that the provisions of Section 547. Criminal Procedure Code could not be pressed into service by the Magistrate. In the instant case the Supurdar was directed to deposit a certain sum of money under the same order by virtue of which he was given custody of the attached crop as a Supurdar. He was authorised to harvest the crop and was then required to deposit a specified sum by a certain date. In these circumstances recourse could be legally had to the procedure prescribed under Section 547 of the Code as the condition precedent for the applicability of that section stands fully satisfied.

7. The order of the Magistrate, dated 16-7-1971 directing that a recovery warrant be issued against the revisionists for the recovery of Rs. 1, 250 must be held valid and the reference made by the Court below is rejected. The Magistrate may proceed in the matter in accordance with law.


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