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IN THE HIGH COURT OF ALLAHABAD
B. N. Nigam and R. A. Misra, JJ.
KANIZ FATIMA BIBI - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Criminal Revn. 19 Of 1962
Decided On : 08/28/1962
CRIMINAL PROCEDURE CODE - SECTION 145 - SECTION 517 - MAGISTRATE'S JURISDICTION AFTER DROPPING PROCEEDINGS - DISPOSAL OF ATTACHED PROPERTY - INQUIRY TO ASCERTAIN PERSON IN POSSESSION AT TIME OF ATTACHMENT - DELEGATION OF JUDICIAL FUNCTIONS.
Fact of the Case:
A report was submitted to the Sub-Divisional Magistrate (SDM) regarding a potential breach of peace at a religious fair. The SDM passed an order under Section 145(1) of the Code of Criminal Procedure (CrPC) and attached the Dargah Sharif along with offerings. The attachment was made in the presence of the parties concerned. Later, the SDM withdrew the attachment and directed the Supurdars to submit accounts. The order was sent to the Station Officer, who endorsed it to the Head Constable. The Station Officer directed the Supurdars to be discharged and considered action under Sections 107 and 151 of the CrPC if there was any likelihood of a breach of peace.
Finding of the Court:
1. After dropping proceedings under Section 145, CrPC, the Magistrate becomes functus officio and has no further jurisdiction to take any proceedings under Section 145. 2. The Magistrate has inherent powers to pass orders in the nature of winding up proceedings, restoring the status quo ante, and passing orders necessary for preserving the property till the rights of the parties can be determined. 3. Section 517 of the CrPC confers specific powers on the Magistrate to dispose of property or documents produced before the court or in its custody. 4. The Magistrate can hold an inquiry to find out the person to whom possession of the property may be delivered, but this inquiry cannot be akin to the inquiry under Section 145(4) of the CrPC to determine possession on the date of the preliminary order. 5. The Magistrate can utilize evidence already on the record to exercise judicial discretion and deliver possession to the appropriate person. 6. The order under Section 517 is a magisterial order, and the Magistrate must clearly specify the person to whom possession is to be delivered. 7. Delegation of judicial functions is not permissible.
Issues: 1. Whether the Magistrate has jurisdiction to pass any orders after dropping proceedings under Section 145 of the CrPC? 2. Whether the Magistrate can hold an inquiry to ascertain the person in possession at the time of attachment? 3. Whether the Magistrate can delegate judicial functions in passing orders under Section 517 of the CrPC?
Ratio Decidendi: 1. The Magistrate's jurisdiction to pass orders depends on the existence of an apprehension of a breach of the peace. Once the Magistrate finds that there is no such apprehension, he has no jurisdiction to take any proceedings under Section 145 of the CrPC. 2. The Magistrate has inherent powers to pass incidental orders to wind up proceedings, restore the status quo ante, and preserve the property. Section 517 of the CrPC also confers specific powers on the Magistrate to dispose of property or documents in the court's custody. 3. The Magistrate can hold an inquiry to find out the person to whom possession of the property may be delivered, but this inquiry cannot be akin to the inquiry under Section 145(4) of the CrPC to determine possession on the date of the preliminary order. 4. The Magistrate can utilize evidence already on the record to exercise judicial discretion and deliver possession to the appropriate person. 5. The order under Section 517 is a magisterial order, and the Magistrate must clearly specify the person to whom possession is to be delivered. Delegation of judicial functions is not permissible.
Final Decision: The revision application was rejected as the Magistrate's order withdrawing the attachment did not result in any injustice.
( 1 ) ON 31st May, 1960 Station Officer Nasirabad, district Rae Bareli submitted a report to the sub-Divisional Magistrate Saion reporting that as usual the Urs fair was to be held from 1-6-1960 to 6-6-1960 at the Dargah Sharif situate at Jais, police station Nasirabad and that there was an apprehension of a breach of the peace in regard to the offerings made at the Dargah in connection with this Urs. This report for action under Section 145 of the Code at Criminal procedure was submitted to the Sub-Divisional Magistrate, who, on perusing the report, was satisfied of the existence of an apprehension of a breach of the peace and passed an order under section 145 (1) of the Code of Criminal Procedure on 2-6-1960. in view of the emergency, the learned Sub-Divisional Magistral" further directed that the said Dargah Sharif along with cash, sweets and other offerings be attached and placed in the custody of five reliable persons who were directed to keep accounts of tna property and the donations received at the Urs.
( 2 ) THIS order was complied with on 3rd June, 1960 and the attachment was made in the presence of the parties concerned and persons named in the attachment report. Five persons named in the report were appointed Supurdars. This attachment order does not indicate from whose possession the property was attached. Proceedings were then taken in the Court of the Sub-Divisional magistrate concerned and two persons were added as parties on their applications dated 13-6-1960 and 29-7-1960 respectively. On 30-6-1960 the Sub-Divisional Magistrate tinany withdrew the attachment. The order reads:
"in view of this consideration, I withdraw the attachment order passed on 2-5-1960 in respect of the subject of dispute and the S. 0. Nasirabad is, accordingly, directed hereby to give back the attached property in the possession from whose custody it was attached. "
He also discharged the Supurdars and directed them to submit accounts. The order releasing the property was accordingly sent to the Station Officer, Nasirabad and was endorsed to the Head constable of the outpost. The Station Officer Nasirabad endorsed the order to the Head constable in charge of the police outpost stating therein that the police had not taken the Dargah sharif in possession from any party but had attached it in the presence of the parties who were claiming possession. He directed that the Supurdars be discharged and if there was any likelihood or any breach of the peace, action under sections 107 and 151 of the Code of Criminal procedure be considered.
( 3 ) AGAINST the order of the Magistrate dated 30-6-1961 a revision application was filed in the court of the Sessions Judge, Rae Bareli by Srimati Kaniz Fatima urging that there was no written statement by either party on the record, no documentary or oral evidence to warrant any conclusion as regards ownership of the attached property, that on receipt of the file from the high Court a further report as regards the existence of an apprehension of a breach of the peace was called for which was not justified inasmuch as the property being in the possession of the receivers neither party could dare commit any breach of the peace and that on 30th June, 1961 the petitioner requested that the proceedings under Section 145 of the Code of Criminal procedure be continued but the learned Magistrate on receipt of the police report dropped the proceedings. The grounds taken in the revision application Were that the Sub-Divisional magistrate was wrong in dropping the proceedings under Section 145, Code of Criminal procedure, that the Magistrate was wrong in releasing the property in favour of the person from whose possession it was attached as this amounted to a delegation of his powers which was not contemplated by Section 145 of the Code of Criminal Procedure and that after dropping the proceedings under Section 145 of the Code of Criminal Procedure, the Magistrate was empowered only to pass incidental orders
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