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Dasa Mahanty and anr. Vs. Gadadhar Samal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 158 of 1956
Judge
Reported inAIR1957Ori92; 23(1957)CLT37; 1957CriLJ526
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145
AppellantDasa Mahanty and anr.
RespondentGadadhar Samal and ors.
Appellant AdvocateA.K. Das, Adv.
Respondent AdvocateG.C. Jena, Adv.
DispositionRevision petition allowed
Cases Referred(C) and Velur Devasthanam v. Sambandamurthi
Excerpt:
.....good law]. - 2. the learned magistrate is clearly in error in thinking that once he passes an order dropping the proceeding he became functus officio and had no jurisdiction to pass any ancillary order regarding the custody of the property or of the attached crops. whatever might have been the old law on the subject, it is now well settled toy a series of decisions reported in jam bhambbo khan v......c. the magistrate has jurisdiction to pass further orders of an ancillary nature in respect of the attached property. i may also refer to a recent decision of mine in criminal revn. no. 267 of 1957 (ori.) (e). if it as possible to determine the status quo ante the appropriate order would be to direct that the attached property should be restored to the possession of the party from whom it was taken. if, however, the status quo ante could not be determined the proper procedure would be to retain the property and its usufructs in the custody of the court and direct the party concerned to approach the civil court to obtain possession of the same. in the present case, however, there is no difficulty in determining the status quo ante. the learned magistrate has held that the evidence of.....
Judgment:
ORDER

Narasimham, C.J.

1. This is a revision petition against an order passed by a First Class Magistrate of Kenorapara in a proceeding under Section 145 Cr. P. C. The learned Magistrate after discussing the evidence of possession adduced by bath parties observed that he was inclined to believe that the disputed land was in the possession of the second party (petitioners). But he thought that there was a discrepancy in describing the village, in which the disputed property was situated and moreover there was no evidence at all of a likelihood of breach of peace.

He therefore dropped the proceeding and vacated the order of attachment on the 9th May 1956. On the 12th June 1956 he further observed that as the proceeding had been dropped without declaring the possession of either party ha could not, pass any order directing the Police to deliver the attached paddy crops to the petitioner.

2. The learned Magistrate is clearly in error in thinking that once he passes an order dropping the proceeding he became functus officio and had no jurisdiction to pass any ancillary order regarding the custody of the property or of the attached crops. Whatever might have been the old law on the subject, it is now well settled toy a series of decisions reported in Jam Bhambbo Khan v. Makhdum Muhammad Hasan, AIR 1942 Sind 117 (A); Rajdeo Singh v. Emperor, AIR 1948 All. 425 (B); State v. Sheoratan Singh, AIR 1951 Nag 201 (C) and Velur Devasthanam v. Sambandamurthi, AIR 1952 Mad 531 (D) that after dropping a proceeding under Section 145 Cr. P. C. the Magistrate has jurisdiction to pass further orders of an ancillary nature in respect of the attached property.

I may also refer to a recent decision of mine in Criminal Revn. No. 267 of 1957 (Ori.) (E). If it as possible to determine the status quo ante the appropriate order would be to direct that the attached property should be restored to the possession of the party from whom it was taken. If, however, the status quo ante could not be determined the proper procedure would be to retain the property and its usufructs in the custody of the Court and direct the party concerned to approach the Civil Court to obtain possession of the same. In the present case, however, there is no difficulty in determining the status quo ante.

The learned Magistrate has held that the evidence of possession of the second party, both oral and documentary was more convincing and that they must be held to have been in possession of the property since the time of the lease in 1947. In view of this finding which I see no reason to disturb I would direct that the disputedproperty including the attached crops should be restored to the possession of the petitioners (second party) and the first party should be left fight out their rights, if any in the appropriate law Courts.

3. The order of the Magistrate is modified accordingly and the revision petition is allowed.


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