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TMI Blog1981 (11) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... ce exists concerning the house bearing Municipal No. 5.9.15, Chapel Road, Hyderabad, the Executive Magistrate, Hyderabad, was satisfied that the said dispute was likely to cause a breach of peace, passed a preliminary order under S. 145(1), Cr.P.C. on 10-12-1980 and issued notices to both the parties to make their appearance and put in the written statements of their defence in respect of their claim of actual possession of the property in dispute. The Magistrate also made an order of attachment on the same day and directed the Deputy Tahsildar to take possession of the house bearing No. 5.9.85 (Now No. 5.9.85/A/2). Accordingly, the Deputy Tahsildar took possession of the house on 11-12-1980 under a Panchanama. 3. Both the parties filed their written statements stating that there neither existed nor exists any cause for the apprehension of the breach of peace and so the proceedings may be dropped. Thereupon, the Magistrate called for a report from the Inspector of Police, Abid Road, who inspected the premises in dispute and reported that there was no apprehension of breach of peace. So the Magistrate cancelled the preliminary order under Section 145(5), Cr.P.C. and directed the Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to take any proceedings under the provisions of S. 145 of Cr.P.C. But it is not the same thing to say that he would have no right to pass an incidental order. Certain action was taken by him under the belief that he had jurisdiction to proceed under Section 145, Cr.P.C. and it is only right that he should have inherent powers to restore the conditions that existed before he took action or in other words to wind up the proceedings by restoring the status quo ante. Again the proceedings under Section 145, Cr.P.C. having been dropped, the attachment could not be continued ......... Under the provisions of S. 145, Cr.P.C. the Magistrate could not, after dropping the proceedings, enquire into the fact as to who was in possession on the date of the preliminary order. Ordinarily, whenever an attachment order is passed, the attachment is made very soon after the preliminary order. An enquiry as to the person from whose possession the property was attached on the date of the attachment may, therefore, in most cases be tantamount to making an enquiry as to who was actually in possession on the date of the preliminary order, something which the Magistrate is not entitled to do ...... That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s there is authority for that proposition as already stated above) that he is functus officio even to make such incidental orders as he is in the very nature of things require to pass so that no party might be put to any prejudice on account of the order of the court itself. In other words, the Magistrate can restore the party to possession from whom possession was taken at the time of attachment provided there is clear material on the record to show that. Where, however, there is no such material the Magistrate must rest content with the passing of an order removing the attachment and leave the parties to seek their remedy in a proper court of law. 10. A Division Bench of the Nagpur High Court consisting of Hidayatullah and R. Kaushalendra Rao, JJ., in State v. Sheoratan Singh AIR 1951 Nag 201 : (52 Cri LJ 1) held :- Where the Magistrate acts under sub-Section (5) and cancels the preliminary order passed under sub-Section (1) there would be nothing wrong if he passes an incidental order cancelling the order of attachment as well. It is but right that when the jurisdiction to act under the section is found wanting the Magistrate should restore the status quo ante. When it is not po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Krishnamurthi v. C. Jaganmohan Rao (1956-2 Andh WR 1002) N. D. Krishna Rao, J., after referring to some of the authorities on the subject observed : The principle laid down in these cases is that even after dropping the proceedings under Section 145(5), Cr.P.C., the Magistrate, has jurisdiction to pass incidental orders for the winding up of the proceedings and that he should restore the status que ante as far as possible. But he should not ordinarily deliver the attached property or its income to one of the parties, because that would imply a decision in favour of that party as regards the, dispute of possession, without any enquiry. 15. The learned counsel for the B party respondents placing reliance on the decision of the Supreme Court in Mathuralal v. Bhanwarlal, 1980CriLJ1 submits that the Magistrate has no right after dropping the proceedings under Section 145(5), Cr.P.C. to make any further orders since the very foundation for the jurisdiction of the Magistrate, disappeared with the dropping of the proceedings under Section 145(5), Cr.P.C. 16. In Mathuralal's case (supra) the Supreme Court dealing with the scope of S. 145, Cr.P.C. held : If there is no dispute likely t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to order restoration of the possession of the property to them since they were found in possession of the property at the time of attachment. In the circumstances, the Magistrate rightly ordered, restoration of the possession to Ashfaq Alam and Masood Alam. He made no enquiry for doing so. On the other hand, the learned Sessions Judge made an enquiry under Section 145, Cr.P.C. as to who was entitled to possession of the property which he was not entitled to do, after dropping the proceedings under Section 145(5), Cr.P.C. and set aside the order of the Magistrate and directed delivery of possession to B party respondents. Therefore, the order of the Sessions Judge is wholly illegal and improper and ought to be set aside. 20. Then there remains the question relating to the maintainability of the criminal revision petitions. The learned counsel for the B party respondents submits that since already revision has been filed before the Sessions Judge invoking the jurisdiction under Section 397(1), Cr.P.C a second revision in respect of the same subject matter is barred under S. 397(3), Cr.P.C. He submits that what the determinant of the bar is as to what was decided in the case and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be construed as reference to the Sessions Judge. (3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, decision of the Sessions Judge thereon in relation to such person shall be final and no, further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court. 21. Under S. 435 of Cr.P.C., 1898, the Sessions Judge and the High Court had concurrent jurisdiction to call for the records of inferior Criminal Courts. But, however, a practice had developed (though not it is an inflexible rule) and firmly established that the High Court would not entertain a revision application unless the applicant had approached the Sessions Judge in the first instance. The object of the practice was firstly to prevent the time of the High Court from being wasted, and secondly, to have an advantage of the opinion of the Sessions Judge in case the matter should come up eventually before the High Court. Under the present Section (S. 397) also, the Sessions Judge exercises concurrent jurisdiction with the High Court to call for the records and exercises the powers of revision. Sub-section (3) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court even at the instance of the person who unsuccessfully fought a revision application against the person who has moved the Sessions Judge by way of revision. Under Section 397(1), Cr.P.C. he cannot be said to be the same person. What is positively prohibited by Section 397(3) is a revision application by the same person who moved the Sessions Judge and not by a person who unsuccessfully contested the revision application before the Sessions Judge. Therefore, the revision application by the A party respondent, who unsuccessfully contested the revision application filed by the B party respondents is maintainable. 22. This view of mine gains support from a Division Bench decision of the Kerala High Court in Joseph Abraham v. Thankamma 1975 Ker LT 451 wherein it was held : This section lays down that the order of the Sessions Judge in revision is final and no further revision lies to the High Court. But the bar is a qualified bar. The most important words in this section are that the decision of the Sessions Judge thereon in relation to such person shall be final. Which means that the finality of the orders of the Sessions Judge is confined to the person at whose instance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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