ORDER
Kalyan Dutta, J.
1. This is an application-in-revision by Mansukh Ram against the judgment of the Session Judge, Jhunjhunu, dated 3rd September, 1975, whereby the order of the Sub-Divisional Magistrate, Jhunjhunu, dated 9th June, 1975, declaring that he had no jurisdiction to continue the proceedings under Section 145, Criminal P. C after passing an order of attachment under Section 146(1), Criminal P.C. on. the ground of emergency, was set aside and the case was sent back to him for inquiry into the actual possession over the land in dispute on the basis of documentary and other evidence that may be adduced by the parties.
2. The relevant facts giving rise to this revision-petition may be briefly stated as under:
3. On 20th July, 1974, Mansukh Ram son of Nopa Rain Jat resident of village Nanag lodged a written report with the Station House Officer, Jhunjhunu. It was stated in the report that Ganesha Ram wanted to dispossess Nopa Ram from agricultural land bearing Khasra Nos. 3 and 169 situated at the outskirts of village Nanag, over which the latter's father had Khatedari rights. Ganesha Ram instituted a case against Nopa Ram on the basis of a fictitious gift-deed in the court of the Sub-Divisional Officer, Jhunjhunu, The Sub-Divisional Officer passed an order restraining both the parties from cultivating the land in dispute. In spite of that order, Ganesha Ram accompanied by Mam Chand, Om Prakash, Hanuman and 15 or 20 other persons entered into the land for ploughing it. As there was apprehension of breach of the peace, Nopa Ram requested the Station House Officer to prevent Ganesha Ram and his party from causing breach of the peace and from forcibly ousting him from peaceful possession of his land. The Station House Officer made an inquiry into the matter and made a report to the Sub-Divisional Magistrate, Jlhunjhusiu, for initiating proceedings against Ganesha Ram, Om Prakash, Hanuman and Mam Chand under Sections 107 and 116, Criminal P.C. The Sub-Divisional Magistrate converted the proceedings under Section 107, Criminal P.C. into one under Section 145, Criminal P.C. As he was satisfied upon police report and the application filed by Mansukh Ram on 26th July, 1974, that there was a dispute likely to cause breach of the peace between the parties concerning Khasra Nos. 3 and 169, measuring 9 Bighas and 5 Biswas and 8 Bighas and 15 Biswas oi land respectively, the Sub-Divisional Magistrate passed a preliminary order in the case on 9th June, 1975, requiring the parties concerned in the dispute to attend his Court and to put in written statements of their respective claims as respects-the fact of actual possession of the land in dispute. The Sub-Divisional Magistrate, while passing the preliminary order under Sub-section (1) of Section 145, new Criminal Procedure Code, considered the case to be one of emergency, so he attached the land under Sub-section (1) of Section 146, new Criminal P.C. and proceeded to hold an inquiry into possession. Aggrieved by this order, Ganesha Ram went in revision to the court of' the Sessions Judge, 'Jhunjhunu. The learned Sessions Judge heard the parties and modified the order of the Sub-Divisional Magistrate and sent the case back to him with a direction to make an inquiry into the matter and to decide as to which party was in possession of the land in dispute at the date of the preliminary order or within two months next before it. As against this order, Mansukh Ram has come up in revision-petition to this Court.
4. The revision-petition was admitted and notices thereof were given to Ganesha Ram, non-petitioner and to the State. Mr. J.S. Saluja appeared on behalf of the non-petitioner Ganesha Ram but, on the date fixed for arguments, he pleaded no instructions and expressed his inability to argue the case on behalf of Ganesha Ram. Hence, I heard Mr. N.L. Tibrewal for the petitioner and Mr. M. G Bhati appearing on behalf of the State.
5. The short question that arises for determination in this revision-petition is whether after passing an order of attachment of the land in dispute on the ground of emergency under Section 146(1) of the new Code of Criminal Procedure, the Sub-Divisional Magistrate can proceed under Section 145, Criminal P.C. and pass a final order.
6. I have already held in Umrao v. Sheonarain, 1975 Raj LW 353 that the proceedings under Section 145, Criminal P. C should come to an end after an order of attachment is made by the Magistrate under Section 146(1) on the ground of emergency-The reason is that under the old Code of Criminal Procedure the Sub-Divisional Magistrate was empowered to attach the subject of dispute in case of emergency in exercise of the powers conferred upon him by the third proviso to Sub-section (4) of Section 145, Criminal P.C. and the attachment subsisted till the Sub-Divisional Magistrate had passed a final order under Sub-section (6) of Section 145, Criminal P.C. unless he cancelled the preliminary order on the ground that no dispute likely to cause breach of the peace exists or has existed. Such an interim attachment made under the third proviso to Sub-section (4) of Section 145, old Criminal Procedure Code enured for the benefit of such party as was found upon inquiry by the Sub-Divisional Magistrate to be in possession of the subject of dispute at the date of the preliminary order or within two months next before it. But after the commencement of the new Code of Criminal Procedure the provision of attachment of the subject of dispute in case of emergency contained in the third proviso to Sub-section (4) of Section 145, old Criminal Procedure Code has been omitted from there and has been incorporated in Sub-section (1) of Section 146, new Criminal Procedure Code. As a consequence of this change, the Sub-Divisional Magistrate can now attach the property in dispute indefinitely until such time as a competent court has decided the rights of the parties, thereto. In view of this change, the attachment made under Sub-section (1) of Section 146, new Criminal P.C. on the ground of emergency will now continue until a competent court has decided the rights of the parties to the subject of dispute with regard to the person entitled to the possession thereof and the Sub-Divisional Magistrate shall have no power to hand over possession of the disputed property to the party in whose favour he may ultimately pass a final order, upon inquiry, under Sub-section (6)(a) of Section 145, new Criminal P.C. As the attachment once made on the ground of emergency is now operative even after the Sub-Divisional Magistrate has found in favour of a party on the question of possession of the subject of dispute, an inquiry as to possession as envisaged by Sub-section (4) of Section 145, new Criminal P.C. will serve no purpose and, in my opinion, will be unnecessary. There is no doubt that the Sub-Divisional Magistrate is not a competent Court to determine the rights of the parties to the subject of dispute with regard to the person entitled to the possession thereof, because under Sub-section (4) of Section 145, new Criminal P.C. he is required to decide the question of actual possession only without reference to the merits or claims of any of the patries to a right to possess the subject of dispute. The result of the above discussion is that after attachment of the subject of dispute under Sub-section (1) of Section 146, new Criminal P.C. on the ground that the case is one of emergency, a proper inquiry into the question of possession as contemplated by Sub-section (4) of Section 145, new Criminal P.C. is of no use, because the attachment will subsist even after the final order which may ultimately be passed by the Magistrate after such inquiry into the question of possession and the Sub-Divisional Magistrate will have no power to restore the successful party to possession. The Sub-Divisional Magistrate after having once attached the subject of dispute on the ground of emergency is, therefore, not empowered to proceed further under Section 145, new Criminal P.C. except for the purpose of ascertaining whether there is any 'dispute or whether there is no longer any likelihood of breach of the peace with regard to the subject of dispute, because, in that case he can withdraw the attachment at any time. A similar view was taken by the Allahabad High Court in a recent case in Chandi Prasad v. Om Prakash 1976 Cri LJ 209 (All). The relevant observations made by Hon'ble Justice Kapoor are reproduced below:
Learned Counsel for the petitioners has argued that on the plain reading of this section the property which has been attached under Section 146(1), Criminal P.C. can be released only after the rights of the parties have been determined by a competent court and the Magistrate had no power to proceed farther under Section 145, Criminal P.C. except for die purpose of finding out whether there was still an apprehension of breach of the peace.
Shri V.S. Jaunari, learned Counsel fer the opposite parties has argued that since the attachment was on the ground of emergency, it was open to the learned Magistrate to proceed further under Section 145, Criminal Ps C. According to him, it would have been a different matter if the attachment was on any of the other two grounds, that is, the Magistrate decided that none of the parties was then in such possession as referred to in Section 145 or if he was unable to satisfy himself as to which of them was then in such possession of the subject of dispute. In that case he has conceded that attachment could have continued till the dispute was finally decided by some Civil Court, revenue court or such other competent court. I see no reason for drawing such distinction. The last clause, 'he may attach... to the possession thereof' obviously governs all the three clauses including the clause when the attachment is made for emergency....
Consequently, I am of the view that the Sessions Judge, jjhunfhanu, wrongly directed the Sub-Divisional Magistrate to continue the proceedings under Section 145, Criminal P.C. in spite of having passed an order of attachment under Section 146(1), Criminal P.C. Mi the ground of emergency.
7. The revision-petition is, therefore, accepted, the impugned order passed by the Sessions Judge, Jhutijhunu, is set aside and the Sub-Divisional Magistrate, Jhunujhuna, is directed not to proceed further with the ease under Section 145, Criminal P. C except for the purpose of finding out whether there is no longer any likelihood of breach of the peace with regard to the land under controversy, because, in that case, if he is satisfied that there is no longer any Mce-hood of breach of the peace with regard to the subject of dispute, he can withdraw the attachment at any time under proviso to subsection (1) of Section 146, Criminal P.C.