GOVIND PRASAD Vs. BISSO MAL AND

JUDGEMENT

(1.) ON the basis of the report of the police of police station Achnera, dated 20th October, 1974 the Sub-Divisional Magistrate passed a preliminary order under Section 145 (1) Cr.P.C. on 21st October, 74. Considering the case one of emergency, he also directed attachment of the property under section 146 (1) Cr.P.C. The parties were summoned to file their written statements on 22nd October, 74 the property was attached. Thereafter on 29th October, 74 Bisso Mai filed an application alleging that the report of the police contained incorrect allegations and there was absolutely no apprehension of breach of peace with respect to the disputed plot. It was prayed that the property be released from attachment. The Magistrate called for police report on this application. ON 19th Nov. 1974, Bisso Mai filed a written statement in which he asserted that he was the owner in possession of the disputed plot and that he had constructed a building thereon and that there was no apprehension of breach of peace. ON 3rd Dec. 74 the police report was submitted to the effect that the apprehension of breach of peace continued to exist before. ON the same day viz 3rd December, '74 Govind Prasad filed his written statement in which he asserted his ownership and possession of the plot in dispute and asserted that there existed an immediate danger of peace since Bisso Mai was interfering with his possession. The learned Magistrate again passed an order on 3rd December, '74 agreeing with the report of the police as to the existence of apprehension of breach of peace. He rejected the application of Bisso Mai for dropping the proceeding under section 145, Cr.P.C. and ordered that the proceeding shall continue. The court proceeded to record the statement of Bisso Mai in respect of his claim for possession over the land in dispute. The statement of Bisso Mai was unfinished and was to continue. Subsequently on 19th April, '76 the Magistrate being of the opinion that in view of the attachment of the land in dispute, he should not proceed further with the inquiry, he passed an order on the same date directing the parties to get their claim for possession decided by a competent court. It appears that in pursuance of this order, a civil suit for title and possession as filed by Bisso Mai and the matter is still sub judice. It appears from the record that on 6th October, '77 Bisso Mai again filed an application alleging that there was no apprehension of breach of peace and the proceedings be dropped. ON 27th January, 178, the police submitted a report that now there did not exist any apprehension of breach of the peace with respect to the land in dispute. In opposition Govind Prasad filed an application and affidavit on 31.3.78 that the report of the police was incorrect and that the apprehension of breach of peace continued to exist. The Magistrate did not accept the police report and considering all the circumstances passed an order on 31st March, '78 rejecting the application of Bisso Mai for dropping the proceeding and directed that the property shall continue to remain under attachment till the rights of the parties had been decided by the Civil Court. Aggrieved thereby a revision was filed by Bisso Mai before the Sessions Judge, Agra. This revision has been allowed on 3rd August, '78. The order of the Magistrate dated 31st March, '78 refusing to drop the proceeding and withdraw the attachment, have been set aside. The Sessions Judge has directed that the proceeding under Section 145 Cr.P.C. be dropped as redundant. Hence this revision by Govind Prasad. I have heard the learned counsel for the parties at considerable length and have also carefully scrutinized the record. Counsel for the applicant has contended that the impugned order passed by the Sessions Judge is illegal. The order passed by the Magistrate on 19th April, 1976 by which he directed the parties to get their rights decided by the civil court had become final, that since the apprehension of breach of peace continued to exist the Magistrate was correct in refusing to drop the proceeding and withdrawing the attachment that the direction of the Sessions' Judge for dropping the entire proceeding under Section 145, Cr.P.C. was illegal. Much controversy has been also raised between the parties on the interpretation of Section 146, Cr.P.C. Before deciding the other submissions, raised in the case I consider it necessary to analyse the legal position. Section 146 (1) authorises the Magistrate to pass a preliminary order, if he is satisfied as to the existence of an apprehension of breach of peace with regard to immovable property. After passing of such an order, he proceeds to conduct the inquiry in accordance with the provisions of Section 145 (4) Cr.P.C. and to pass a final order under section 145 (6) Cr.P.C. in favour of one of the parties whom he holds to be in possession on the date of the preliminary order. Under section 146, Cr.P.C. however he has been empowered to attach the property in dispute. This order of attachment can be passed in three contingencies. 1. When he considers the case one of emergency, after the passing of the preliminary order under section 145, Cr.P.C.

(2.) WHEN he comes to the conclusion on a consideration of the entire evidence that none of the parties is in possession of the property in dispute and