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Mena Pradhan and ors. Vs. Prahallad Danta - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1971CriLJ1200
AppellantMena Pradhan and ors.
RespondentPrahallad Danta
Excerpt:
.....totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 5. in the facts and circumstances of the case, therefore, the order passed by the learned magistrate appears to be clearly wrong and must be set aside and it is ordered accordingly......properties in dispute were never attached. an application appears to have been filed before the learned magistrate sometime before 21-3-1968 praying that the standing crops of the lands which were attached and kept under the custody of the zimadar should be released in favour of the first party in that proceedings (who is the opposite party before me). on this application the learned magistrate directed the sub-inspector of tarbha police station to return the attached paddy crops in the custody of the zimadar to the first party.3. section 144 of the criminal p.c. .does not contemplate the passing of any order of attachment. if in a proceeding started under section 144 of the criminal p.c. the magistrate feels that there is really a dispute regarding possession, it is his duty to.....
Judgment:
ORDER

B.K. Patra, J.

1. This is a revision petition against an order dated 21-3-1968 passed by the Sub-Divisional Officer and Magistrate, 1st Class, Sonepur in a proceeding Under Section 144 of the Criminal P.C.

2. A preliminary order in that case was passed on 14-11-1967 prohibiting the members of the opposite parties therein (who are petitioners in the present revision) from entering into certain plots of lands mentioned in the order. This order ceased to be operative by efflux of time. Admittedly the proceed-ing Under Section 144, Criminal P.C. was never converted to one Under Section 145 of the Criminal P.C. and the properties in dispute were never attached. An application appears to have been filed before the learned Magistrate sometime before 21-3-1968 praying that the standing crops of the lands which were attached and kept under the custody of the Zimadar should be released in favour of the first party in that proceedings (who is the opposite party before me). On this application the learned Magistrate directed the Sub-Inspector of Tarbha police station to return the attached paddy crops in the custody of the Zimadar to the first party.

3. Section 144 of the Criminal P.C. .does not contemplate the passing of any order of attachment. If in a proceeding started Under Section 144 of the Criminal P.C. the Magistrate feels that there is really a dispute regarding possession, it is his duty to convert the proceeding Under Section 144 of the Criminal P.C. to one Under Section 145 of the Criminal P.C., attach the property and proceed in the manner enjoined by that section. As indicated above, this has not been done.

4. Mr. Patra learned Advocate appearing for the opposite party has not been able to produce before me any order of attachment passed by the Magistrate in respect of either the lands or the crops. The impugned order, however, refers to 'attached paddy crops.' The position therefore is either the paddy crops have been attached or they have not been attached. If they had not been attached, the question of releasing the crops from attachment and making over the same to any party does not arise. If at all the crops had been attached, it was beyond the jurisdiction of the learned Magistrate to do so in a proceeding Under Section 144 of the Criminal P.C.

5. In the facts and circumstances of the case, therefore, the order passed by the learned Magistrate appears to be clearly wrong and must be set aside and it is ordered accordingly.


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