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Kookkil Kelu Nair Vs. Kottammal Thanduparakkal Kunhi Mohammed Haji and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 182 of 1969
Judge
Reported inAIR1971Ker20; 1971CriLJ218
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145(1) and (4) and 439
AppellantKookkil Kelu Nair
RespondentKottammal Thanduparakkal Kunhi Mohammed Haji and ors.
Appellant Advocate K. Bhaskaran and; O.V. Radhakrishnan, Advs.
Respondent Advocate K. Kunhirama Menon and; P. Ramakrishnan Nair, Advs.
DispositionPetition dismissed
Cases ReferredGanga Singh v. Raj Bahadur Singh
Excerpt:
- - a preliminary order passed under section 145(1) can be modified at any stage if the magistrate is satisfied that he has gone wrong in certain respects or that no emergency exists with reference to a portion of the property or on other appropriate grounds......claim. certain documents were filed by the a party also in support of the contrary position. the learned magistrate after hearing both parties has passed the order under revision which reads:'the court receiver is hereby directed not to attach those 200 acres of clear felled area (as shown in ext. b-2). he is to attach the rest of the land. the proceedings are modified accordingly.' learned counsel for the revision petitioner contends that this is an order passed without jurisdiction, as according to him when once an order of attachment is passed the magistrate has no jurisdiction to pass a modified order. he can only cancel or affirm the order at the final stage according to the evidence in the case and cannot pass a modified order. i do not think the position contended for is.....
Judgment:
ORDER

K. Sadasivan, J.

1. The A party in a proceeding under Section 145 of the Code of Criminal Procedure has come up in revision against the modified order pissed by the Magistrate on 26-5-1909 directing the receiver not to attach 200 acres of clear-felled area comprised in the entire extent which was already directed to be attached. In respect of this 200 acres, the B party is seen to have put forward the claim that he is in possession and some documents were also produced in support of the claim. Certain documents were filed by the A party also in support of the contrary position. The learned Magistrate after hearing both parties has passed the order under revision which reads:

'The Court receiver is hereby directed not to attach those 200 acres of clear felled area (as shown in Ext. B-2).

He is to attach the rest of the land. The proceedings are modified accordingly.' Learned Counsel for the revision petitioner contends that this is an order passed without jurisdiction, as according to him when once an order of attachment is passed the Magistrate has no jurisdiction to pass a modified order. He can only cancel or affirm the order at the final stage according to the evidence in the case and cannot pass a modified order. I do not think the position contended for is correct. The question whether the property should be placed under attachment is something within the discretion of the magistrate and that will depend upon the existence or otherwise of an emergency as is evident from the following proviso to Section 145(4), Criminal Procedure Code. The proviso reads:

'Provided also that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.'

2. So, the attachment is always pending final decision in the case and if the Magistrate)thinks that in respect of a portion of the property no emergency exists he can cancel the order of attachment in respect of that portion and that is what the learned Magistrate has done in the present case. I do not find my way to interfere at this stage. The question whether there exists an emergency or not is within the discretion of the magistrate and he is the person competent to decide. A preliminary order passed under Section 145(1) can be modified at any stage if the magistrate is satisfied that he has gone wrong in certain respects or that no emergency exists with reference to a portion of the property or on other appropriate grounds. Learned counsel for the petitioner cited Ganga Singh v. Raj Bahadur Singh, AIR 1958 All. 803 in support of the position that a preliminary order passed under Section 145(1) cannot be modified by the magistrate and if he does so, he will be going in excess of his jurisdiction.

3. The decision cited not only does not lay down such a proposition but in fact, it affirms the position that the Magistrate can revise the preliminary order at any stage of the enquiry. Mulla, J., has observed in that case as follows:--

'The preliminary order passed by the Magistrate under Section 145(1) is only a tentative order based on the information available to him at the time when the order was passed and is therefore open to be revised by him when he gets fuller information.'

4. In the present case also the Magistrate, it must he presumed, has modified the order on receipt of fuller information. I see no want of jurisdiction in the course adopted by the learned Magistrate. The petitioner, if he thinks, is aggrieved by this order can put forth his plea at the enquiry and get his grievances redressed at the final stage. The present order is concerned only with attachment and that is not intended to settle the rights of the parties once for all. I see, therefore, no reason to interfere and this Revision Petition is dismissed.


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