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Somar Sao vs Baidyanath Sao And Ors. on 21 February, 1974

Patna High Court
Somar Sao vs Baidyanath Sao And Ors. on 21 February, 1974
Equivalent citations: 1975 CriLJ 1561
Author: B Jha
Bench: B Jha


ORDER

B.P. Jha, J.

1. The petitioner (second party) has moved this revision application against the order of the learned Magistrate D/- the 12th May, 1971, by which order the learned Magistrate withdrew the attachment order and directed the proceeding to be dropped, under Section 146(1) of the Code of Criminal Procedure (hereinafter referred to as the Code). A preliminary order under Section 145(1) of the Code was made on the 16th of April, 1966. On the 16th of October, 1968, the Magistrate referred the dispute to the Munsif under Section 146(1) of the Code and also passed an order of attachment of the disputed properties under Section 146(1) of the Code. On the 11th of December, 1970, opposite Party Baijnath Sao filed an application praying that the attachment order passed under Section 146(1) of the Code be withdrawn and the proceeding under Section 145 of the Code pending before the Munsif be dropped. By the order dated the 12th of May, 1971 the learned Magistrate withdrew the attachment order on the ground that there existed no apprehension of the breach of the peace in regard to the subject-matter of dispute and also directed that the present proceeding be dropped.

2. In my opinion, the Magistrate under the proviso to Sub-section (1) of the Section 146 of the Code has the authority to withdraw the attachment order provided he is satisfied that there is no longer any likelihood of the breach of the peace in regard to the subject of dispute. But the legislature thought it fit not to vest the Magistrate with the authority to drop the proceeding under Section 146(1) of the Code. In my opinion, when the dispute is referred to the Civil Court under Section 146(1) of the Code, the Civil Court is in seisin of the whole matter and it is for the Civil Court to suggest for the dropping of the proceeding. Since the Magistrate has referred the dispute for decision in regard to possession under Section 146(1) of the Code, it is for the Civil Court to decide as to whether any dispute exists or not. If it comes to the conclusion that there is no dispute, it may suggest to the Magistrate under Section 146(1-B) of the Code to drop the proceeding and only on receipt of the suggestion of the Civil Court under Section 146(1-B) of the Code, the Magistrate shall pass orders in accordance with the suggestion of the Civil Court. In my opinion, the Magistrate has erred in usurping the position of the Civil Court. I, therefore, set aside that part of the order of the learned Magistrate by which he has dropped the proceeding and, affirm that part of the order by which he has withdrawn the attachment proceeding.

3. In the result the application is allowed. The parties may approach the Civil Court for taking necessary steps in the matter.

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