IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.319 of 2007 GANESH PRASAD Versus STATE OF BIHAR & ORS ----------- 9 17.3.2009 In the instant writ petition the petitioner seeks a direction to the respondent authorities to release the land of the petitioner in his favour from the rigor of section 146(1) Cr.P.C. The petitioner was a first party in a proceeding under section 145 Cr.P.C. being Case No.790 of 1989. The learned Subdivisional Magistrate, Aurangabad by his order dated 25.6.1990 appointed Officer Incharge, Daud Nagar P.S. as receiver in a proceeding under section 146 Cr.P.C. Ultimately the proceeding under section 146 Cr.P.C. was decided in favour of the second party vide order dated 20.12.2002. The petitioner was the first party in the aforesaid case. Against the said order the petitioner preferred a revision being Cr.Revision No.33 of 2003 and the revisional court by order dated 20.12.2006 set aside the order dated 20.12.2002 and held that until and unless the partition and possession is decided by the competent court of jurisdiction, no party can be exclusively declared in possession over any portion of the suit land. The grievance of the petitioner is that up till now neither the land attached by order dated 25.6.1990 has been released nor the receiver has deposited or accounted the amount received since 1990 onwards up to date. The petitioner in this respect filed revision before the Collector also. A counter affidavit has been filed on behalf of respondent no.3, Superintendent of Police, Aurangabad. In paragraph 9, the deponent accepts the big loss sustained by the petitioner. However, the court proceedings came 2 to an end on 22.12.2006 after passing of order by learned Additional Sessions Judge, Aurangabad in Revision application no.33 of 2003/ 1 of 2004. Learned counsel for the State submits that the S.H.O., Daudnagar thereafter wrote letters to Mohan Ram and Pundeo Singh to deposit the income accruing from the land in the office of the S.D.O. Pursuant to the letter a sum to the tune of Rs.19,210/- has been deposited as contained in Annexure- A. Learned counsel appearing on behalf of respondent no.5 submits that though the revisional court has set aside the order passed by the Executive Magistrate dated 20.12.2002 deciding the position in their favour but however the court observed that no party can be exclusively declared in possession over any portion of the suit land. He further submits that in view of the aforesaid fact, the petitioner alone cannot be entitled to receive the entire proceeds. Having heard learned counsel for the parties, this court takes up the issue raised by the parties one by one. The first grievance is that the land in question has not been released as yet. So far as this grievance is concerned, the same is misconceived. Once a proceeding under section 145 Cr.P.C. culminates, the order of attachment under section 146 also merges with the same unless the matter of possession has been referred to a competent Civil Court. Section 146 Cr.P.C. confers power on an Executive Magistrate to attach subject of dispute and to appoint receiver any time after initiating a proceeding under section 145(1) Cr.P.C. The aforesaid attachment can be passed in the following circumstances : i) If the Magistrate consider the case to be one of emergency or if he 3 decides that non of the parties was then in such possession as is referred to in section 145. ii) Or if he is unable to satisfy himself as to which of them is, in such possession, he may attach the subject of dispute until a competent court has determine the rights of the parties. In the instant case, the Magistrate has attached the property after initiating a proceeding under section 145(1) Cr.P.C., as the dispute arose between the parties. It also appears from the order that the Magistrate has not referred the matter to a Civil Court, in which case it could have attached the property till the decision of the Civil Court. In such circumstances the order of attachment came to an end as soon as the proceeding under section 145 was ultimately decided in favour of one party vide order dated 20.12.2002. It appears that the matter was taken to the revisional court vide Criminal Revision No.33 of 2003/1 of 2004, which was finally decided on 22.12.2006. There is no averment on the record, whether there was any stay of the order of the Executive Magistrate or not during the pendency of the revision application. In case if the order of the Magistrate has been stayed by the revisional court, the attachment would continue till the same is altered by the superior court and in case there is no modification in the order, then on final determination of the matter by the superior court. Thus, in any view of the matter the attachment would come to an end on 22.12.2006, when the Ist Additional Sessions Judge, Aurangabad while setting aside the order of the Executive Magistrate declaring the Opposite party in possession observed that no party can be exclusively declared in 4 KHAN possession over any portion of the suit land. In view of the aforesaid legal position, the land which was attached automatically got released in any view of the mater on 22.12.2006, and the Officer Incharge ceased to be receiver or to have any control over the land in question. Now this takes us to the next question regarding the accountability of the proceedings of the land in question and release of the sum so deposited vide Annexure-A of the counter affidavit in favour of the petitioner. The Sessions Judge in his order found that no party can be declared to be exclusively in possession of the land in question. In such circumstances, though the petitioner may be having share in the land, it would be difficult for this court to direct that the entire proceeds would be released in favour of the petitioner. It would be appropriate for the petitioner to approach the competent court either for release of the amount so deposited vide Annexure-A or to ask for account of the proceeds. In case such application is filed before an appropriate court the same should be disposed of without much delay after hearing both the parties. With the aforesaid observations, this writ petition is disposed of. (S.P.Singh,J)