S.M. Fazl Ali, J.
1. This is a reference by the learned Additional Sessions Judge Srinagar, recommending that an order passed by the learned Magistrate attaching the shop in question as also certain moveables situated in the shop be set aside on the ground that the magistrate had no jurisdiction to attach the moveable property.
2. The learned Counsel for the non-applicant opposing the reference has submitted that a magistrate acting under Section 145 Cri.P.C. has no doubt, no jurisdiction to pass an order of attachment specifically with respect to moveable property but where an order is passed in respect of immoveable property which may incidentally include moveable property which is either appurtenant to or lying in the immoveable property the order cannot be said to be suffering from any such infirmity.
In support of this argument he has relied on a number of decisions. In Karain Singh v. Mr. Suraj Kishore Devi : AIR1951All826 , under, similar circumstances, attachment of certain articles lying in the house was held to be valid by the court. While discussing this point Mr. Justice Misra observed as follows:
It has been repeatedly held that if moveable property is included within immoveable property the attachment of the latter kind of the property under the provisions of Section 145 Cr.P.C. would not render the incidental attachment of moveable invalid or bad in law for they would prima facia belong to the person in possession of the immoveable properties.
3. The learned Judge has further observed that the position would be different where a magistrate attaches moveable property as such and not a part of immoveable property. This to my mind, appears to be the real test in such a case to decide whether an order of attachment under Section 145(4) Cri.P.C. with respect to moveable property could or could not be supported.
The view taken by the Allahabad High Court is also the view of number of High Courts namely Patna High Court reported in Deonandan Singh v. Thakur Singh AIR 1949 Pat 58, Lahore High Court reported in Prem Kaur v. Benarsi Das AIR 1933 Lah 409 the Madras High Court reported in Abu Syed Sahib v. Ahmed Mohideen Sahib : AIR1951Mad722 .
4. The learned Counsel appearing in support of the reference has not controverted this legal position. He has, however, submitted that the order has been made specifically with respect to moveable property and, therefore, is without jurisdiction. I have gone through the order of the magistrate which clearly shows that it is passed not specifically with respect to moveable property but it is a general order regarding the shop, the room and the other things and incidentally it also mentions moveable property contained in the shop.
In the circumstances, therefore, I am not in a position to agree with the learned Counsel appearing in support of the reference that this order is not an incidental order but an order with respect to moveable property alone.
5. In these circumstances, therefore, in my opinion the order passed by the magistrate is not without jurisdiction. The reference made by the learned Additional Sessions Judge, Srinagar is misconceived and is, therefore, rejected.