Posted On by &filed under High Court, Patna High Court.

Patna High Court
Kameshwar Prasad Singh vs State Of Bihar on 28 November, 1969
Equivalent citations: AIR 1971 Pat 38, 1971 CriLJ 485
Author: B Sinha
Bench: B Sinha


B.P. Sinha, J.

1. This is an application for quashing the proceeding started against the petitioner for realisation of the money by issue of distress warrant against him.

2. It appears that in the proceeding under Section 145 of the Code of Criminal Procedure, the disputed land was attached under Section 145 (4) of the Code. The standing Rabbi crops were settled by public auction in four blocks on 22-1-1968. The petitioner’s bid was the highest amount for block No. 4. His bid was Rs. 1600. The bid was accepted by an order of the Magistrate. The bid money was not deposited that day. The Nazir reported that nobody appeared before him to deposit the money. Thereupon next day i. e., on 23-1-1968 the Magistrate passed the following orders-

“Perused the report of the Nazir in the margin. Issue D. Ws. for the realisation of the sums fixing 23-2-68.”

Accordingly distress warrant was issued for realisation of the aforesaid amount of Rs. 1600 from the petitioner. The petitioner filed an objection and prayed that the distress warrant may be recalled, which was rejected. Hence this revision application has been filed.

3. The contention of learned counsel for the petitioner is that the petitioner had offered Rs. 1200 to the Nazir that day and wanted time for depositing the balance sum. The money was not accepted. The petitioner left the place under the impression that his bid would be cancelled. It was only long after that date that he learnt about the issue of the distress warrant and as such he disputes the liability to pay the amount. Further it has been contended that at any rate the amount cannot be realised by issue of distress warrant. In this connection, the submission is that there is no provision in the Code of Criminal Procedure for the realisation of such amount by issue of distress warrant. Section 386 of the Code provides for realisation of fine. Section 547 of the Code provides that any money, other than a fine, payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine.

Learned Counsel has submitted that fhis amount was not payable by virtue of any order made under this Code. The contention seems to be well founded. There was

no order of the Court directing the petitioner to pay any amount. Therefore the amount was not payable by virtue of any order made under the Code. It was only a contract between the Court and the petitioner on account of settlement that there could be a liability on the petitioner to pay the bid money. Such liability cannot be considered as being under an order made under the Code. Therefore Section 547 of the Code has got no application in this case. There is no other provision in the Code of Criminal Procedure to cover the instant case.

It would appear that in that very bid, three other blocks were settled with other persons. One of those persons was Ram Narain Singh. He was settlee for one of the blocks for Rs. 4000. Distress warrant was issued against him as well. He came up to this Court for quashing that proceeding in Criminal Miscellaneous No. 1716 of 1968, which has been disposed of by order D/- 30-10-1968. This very point was involved therein and this Court held relying upon the previous decision of this Court in Jagdip Singh v. Jaipal Singh, 1942 Pat WN 77 that the order of the court issuing the distress warrant for realisation of the consideration money was unwarranted in law and therefore order was set aside.

4. The instant case, is fully covered by the aforesaid case, with which I respectfully agree. Under the circumstances the application is allowed. The order of the Sub-divisional Magistrate of Jehanabad dated 23-1-1968, directing the issue of distress warrant for realisation of the amount from the petitioner is set aside. I would like to make it clear that it is open to the Magistrate to take any course or mode provided under the law for realisation of the consideration money from the petitioner, if he is liable to pay the same.

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