1. Proceedings under 8. 145 of the Code of Criminal Procedure were started by the Sub-Divisional Magistrate, Khetri on the application of Krishna son of Nanag Jat (hereinafter to be referred to as the opposite party). During the proceedings, property was attached. On the 17th November, 1951 learned Magistrate dropped the proceedings as in his opinion there was no longer any apprehension of the breach of peace. After the proceedings were dropped the opposite party presented an application that the land and the crop in dispute were in his possession and should be restored to him. The learned Magistrate accepted this application and directed the attached property to be handed over to the opposite party.
2. Against this order the applicants Kishan Sahai and Ghod had went in revision to the Court of Session at Jhunjhnu. The Additional Sessions Judge Jhunjhnu has made this reference recommending that the order of the sub-Divisional Magistrate Khetri dated the 9th January, 1951 regarding the delivery of possession of the property in dispute to the opposite party Kishna be set aside.
3. I have heard the Learned Counsel for the applicants in support of the reference. The learned Government Advocate concedes that after the proceedings under Section 145 were dropped the Learned Magistrate was functus officio and he was not authorised to make the order that the property should be delivered to the opposite party as it amounted to the decision regarding question of possession. The opposite party in spite of notice has not appeared.
4. I am afraid the order of the Learned Magistrate is illegal and cannot be supported. When the proceedings under Section 145 were dropped the Magistrate had absolutely no power to make an order that the property be returned to a particular party because that amounts to deciding the question of possession which the Magistrate had no right to do after dropping the proceedings. In 'DASHRATH V. TARA CHAND', AIR (12) 1925 Nag 297, property was attached on account of emergency during the proceedings under Section 145 taut after recording evidence, the Magistrate came to the conclusion that there was no danger of breach of peace and on that ground he dropped the proceedings. At the same time he made an order that attached property is restored to the party whose lock was found on the property at the time of attachment. It was held that the Magist. had no suchpower after dropping the proceedings. In 'NARASAY-YA v. C. VENKIAH', AIR (12) 1925 Mad 1252, alsoit was held that after the Magistrate drops theproceedings under Section 145 he is functus officio andhas no jurisdiction to pass any further orders inthe case e. g. with regard to the delivery of the possession of the attached property toeither party. I am in respectful agreement with the views of the Judges of Madrasand Nagpur High Courts and hold that the learnedMagistrate's order about delivery of possession toKishan opposite party was illegal and is liable tobe vacated. The reference is accepted and theorder of the sub-Divisional Magistrate Khetri dated the 9th January, 1951 regarding delivery of possession of the property to Kishna son of Nanag Jat opposite party (applicant under Section 145 proceedings) is set aside.