1. This is a reference by the learned S.J. Rewa on a revision application from an incidental order by the learned Magistrate of Teonthar in regard to properties attached in a proceeding under Section 145 Cr.P.C. which was, however, dropped under Clause (5) of that section. Though this case is by itself unimportant, the general principles for guidance of the Magistrate can be conveniently laid down here.
2. Ganesh Prasad, non-applicant opposite party, alleged in a petition before the Magistrate that he was in possession of the properties in this proceeding, and that the other party, the applicants Ram Kripal Ram and others, were trying to break the peace and disturb his possession. The Magistrate had the matter inquired into by the police, who reported that there was a dispute about these lands likely to result in breach of the peace, & further that Ganesh Prasad was still in possession. In view of the imminent fear of the breach of the peace the police suggested that the lands be attached and placed in charge of a receiver; in anticipation they had already made the attachment. Whatever the propriety of the Police attaching the property, the Magistrate made the preliminary order and also ordered attachment and the control of the receiver.
3. For almost one year the proceedings were pending. Ultimately, the parties filed a joint petition alleging that they were going to settle the matter privately and that there being no likelihood of the breach of the peace proceedings might be dropped. The Magistrate cancelled the preliminary order and dropped the proceedings under Section 145(5) Cr.P.C. Soon after, the Magistrate ordered that the status quo ante should be restored by calling upon the receiver to deliver the properties and the proceeds, if any, to Ganesh Prasad. Upon this the present applicant filed an application in revision before the S.J. who has pointed out, that the Magistrate being functus officio after the dropping of the proceedings, no such order should have been passed.
4. The question here is whether any incidental order about the land could be passed at all, and if so whether the one that was passed was correct.
5. Even when a preliminary order under Section 145 Cr.P.C. is passed the property should not be attached unless there is an emergency. In this State the Police almost invariably request that the disputed property might be attached; sometimes they attach, and then ask for the Magistrate's approval. In all such cases the Magistrates order attachment or approve of the attachment already made by the Police. The preliminary order is passed after the Magistrate makes up his mind, that there is a dispute about the immovable property likely to cause breach of peace; for attaching the property pending decision the Magistrate should have further reasons, namely that there is an emergency, and unless the property is attached there is likelihood of some serious riot or similar acts of violence. If the police want it, they should satisfy the Magistrate on this. Attachment pending decision seriously affects the rights of citizens; and also gives rise to unnecessary and inconvenient controversies. So, It has to be resorted to only exceptionally.
6. There is no doubt that the Magistrate has the complete jurisdiction either to continue the proceeding or at any stage to drop it on being satisfied that no such dispute either existed or at any rate does not exist at that moment. However, if the proceedings are being dropped at joint petition of the parties, the Magistrate will be well advised as a matter of prudence to satisfy himself that the compromise is a real one, and not merely a device to get the dispute out of court, and fight it out in their own way. I do not suggest that the police should necessarily be asked if there was still a likelihood of the breach of the peace, and I would go to the extent of saying that, if possible, the existence of the continuance of the dispute may be ascertained without inviting the police, because the arrival of the police does Itself create a certain amount of restlessness. The point here, however, is that the learned Magistrate did not feel any curiosity whatsoever on what the parties really intended to do on the question of possession. The parties stated that they were going to settle it by private arbitration; nothing serious whatever could have happened had the Magistrate asked them to take a week or two more, and tell him what exactly was the settlement, so that he could be sure that the dispute had really been settled and the petition was not a mere device.
7. When the compromise petition was accepted each party began to run a race to get possession of the property. They had obviously never intended to compromise. In such a case the duty of the Magistrate is clear. Being functus officio he cannot decide the question of possession by taking evidence and weighing pros and cons. But whenever in course of a proceeding properties come to be in custodia legis the court has the duty and certainly the inherent power to restore status quo ante. In the event of the impossibility of restoring status quo ante, it will become necessary for the parties to start another proceeding before the Magistrate or any other competent court. But, if possible this should be avoided.
8. It should be ascertained from the materials that came to the court before the passing of the preliminary order from whom the property passed into custodia legis. If those materials enable the ascertainment of the status quo ante then it should be restored. If it does not then the attachment should be vacated without reference to either party's taking the property. If the parties still disagree they should reagitate the matter in the civil court, or expose themselves to a further proceeding under Section 145 Cr.P.C.
8a. In this case the only material on the record at the stage before the preliminary order, is the police report which shows that the property was in possession of Ganesh Prasad and was taken from him to be placed in charge of the receiver. I do not for a moment suggest that it is necessarily true or that the police acted properly in recommending attachment, or that the report of this nature would have any evidentiary value when the matter would be formally decided under Section 145 Cr.P.C. Obviously, it would be wrong to hold so; but this is the very report on which the preliminary, order was made, the contents of which the parties were aware of while filing the compromise petition. No doubt, the applicant makes a feeble suggestion that there are subsequent insertions in the report. I do not believe it. In, this case restoration of the status quo ante means the vacating of the attachment in favour of Ganesh Prasad from whom the property wag taken by the police.
9. If it is impossible to restore the status quo then the matter would have been otherwise. The courts should make no direction in regard to the restoration of the property, but should let the parties get it decided in the civil court, at the same time keeping a watchful eye and straightaway starting further proceedings under Cr.P.C. if there is a tendency on their part to quarrel against it and break the peace.
10. The principles I have laid down hero are in any event the most reasonable ones consistent with the equities of the parties and public policy. I find that they have been followed in some rulings, two of which are worth citing. The first is reported in - Jam Bhambho Khar v. Makhdum Muhammad Hassan Shah A.I.R. 1942 Sind 117:
Once the Magistrate passes an order under Section 145(5) cancelling the order under Section 145(1) he has no further jurisdiction to adjudicate upon the dispute between the parties, and the parties must so far as possible be restored to the position which they occupied before the proceedings were started, not only with regard to the land, but with regard to the produce of the land or its proceeds. The Magistrate has, therefore, power to direct the crops or their proceeds to be restored to the party from whose possession they are taken. But circumstances may arise where it is not possible to put the parties in the position they occupied before the proceeding's started, once the produce has been sold. In such cases parties should be directed to peek redress of their grievances in civil court: Case law discussed.
In the case reported in - Rajdeo Singh v. Emperor AIR 1948 All 425 old case law was examined and the matter fully discussed.
When proceedings are dropped under Section 145(5), Cr.P.C..., the Magistrate's jurisdiction to act under Section 145 Cr.P.C. altogether ends and as such he can only pass an incidental order relating to attached property. He cannot enter into a minute examination as to the claims of the respective parties. 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 the possession of the property; by doing so he will be restoring the status quo ante. If however the record does not show it then the only alternative for him is to pass an order that the attachment should be lifted without saying in whose favour the release was to be effective.
11. The result is that in this case it was ascertainable from the record that the property was taken out of the possession of Ganesh Prasad and then placed in charge of the receiver. The Magistrate's order was correct and the reference is dismissed.