ORDER
B.K. Sharma, J.
1. Heard learned counsel for the petitioner.
2. The facts leading to this writ petition may be summarised as below :
The police of police station Khaliabad, district Basti gave a report dated 23-5-1995, under Section 145 of the Cr. P. C. in respect of certain agricultural plots specified therein (Annexure No. 1) claiming that there was an apprehension of breach of peace between the parties and praying that action be taken under Section 145 Cr. P. C. and orders be passed under Section 146 Cr. P. C. The Sub. Divisional Magistrate, Khalilabad, District Basti passed a preliminary order on 9-6-1995 under Section 145(1) Cr. P. C. (Annexure No. 2). By the order the parties were called upon to appear on 21-6-1996 to file their written statement in respect of their claim of possession and also to adduce their oral and documentary evidence in respect thereof. Thereafter, the Sub-Divisional Magistrate passed an order dated 19-6-1995 (Annexure No. 3) (i.e. before the date fixed for appearance of the parties and for filing their written statement of claim and for leading their evidence) in which he not only stated that there was an apprehension of breach of peace. between the parties but also stated that he is unable to decide as to which party is in possession of the disputed land and also directed for attachment of the disputed land and that the land be kept under attachment till such time as the decree or order is obtained from a Court competent to decide the claim of title or possession of parties. In pursuance of the said order the attachment was made on 25-6-1995. A copy of the attachment memo has been filed with the writ petition as Annexure No. 4. On 24-6-95 the Sub-Divisional Magistrate stayed the implementation of the order dated 19-6-1995 aforesaid. A revision against the said stay order dated 24-6-1995 (Annexure No. 5) was filed, which became Revision No. 217 of 1995. That revision was dismissed summarly by the IVth Addl. Sessions Judge, Basti vide his order dated 24-6-1995 (Annexure No. 6), on the ground that the stay order passed by the Sub-Divisional Magistrate, Basti was ah interlocutory order. The controversy about this order dated 24-6-95 has become immaterial as on the own showing of the petitioner the attachment order dated 19-6-1995 (Annexure No. 3) had already been implemented before the communication of the stay order passed by the Sub-Divisional Magistrate (Annexure No. 5). The orders dated 9-6-95 (Annexure No. 2) and dated 19-6-95 (Annexure No. 3) were challenged by Ram Komal petitioner in Criminal Revision No. 217 of 1994. Two revisions i.e. Revision No. 239 of 1995 by Ram Shankar, Opp. Party No. 3, and Revision No. 28 of 1995 by Bhanumati, opposite party No. 4, were also filed before the IVth Addl. District and Sessions Judge, Basti. Revision No. 217 of 1994 and Revision No. 210 of 1995 were disposed of by a common judgment dated 14-2-1996 (Annexure No. 7) by the IVth Addl. District and Sessions Judge, Basti, Opp. Party No. 1. The learned IVth Addl. District and Sessions Judge Basti upheld the preliminary order under Section 145(1) Cr. P. C. (Annexure No. 2) but set aside the order dated 19-6-95 (Annexure No. 3).
3. Learned counsel for the petitioner is aggrieved by the order dated 14-2-1996 (Annexure No. 7) in so far as it set aside the order dated 19-6-95 (Annexure No. 3)
4. The argument of the learned counsel for the petitioner is that the impugned order dated 19-6-95 passed under Section 146(1) was an interlocutory order and consequently no revision lay against the same and that the impugned order dated 14-2-96 (Annexure No. 7) was, therefore, without jurisdiction and bad in law on the face of it. In my considered view the order dated 19-6-1995 (Annexure No. 3) passed under Section 146(1) Cr. P. C. was not an interlocutory order but was a final order and that consequently it was subject to the revisional jurisdiction of the IVth Addl. District and Sessions Judge Basti and also that the order passed by the IVth Addl District and Sessions Judge dated 14-2-96 (Annexure No. 7) was a legal and sound order and no other view could be taken by him. The learned Addl. District and Session Judge has pointed out in his judgment dated 14-2-1996 (Annexure No. 7) that the conclusion of the Sub-Divisional Magistrate, Khalilabad, Basti in his order dated 19-6-95 that he is unable to decide as to which party was in possession was bad because under Section 145(1) Cr. P. C. in his preliminary order he had directed issue of notice and uptil the time the order dated 19-6-95 (Annexure No. 3) was passed by the Sub Divisional Magistrate, none of the parties had filed its reply. (In fact 21-6-95 was the date fixed for filing written statements and adducing of evidence by parties).
5. Before I proceed further it may be made clear that the question whether the order passed by the Sub-Divisional Magistrate dated 19-6-1995 was an interlocutory order or final order is different from the question whether the order passed by the Sub-Divisional Magistrate under Section 146(1) Cr. P. C. was valid in the eyes of law and could be sustained? The validity of the order could have no bearing on the question whether it was an interlocutory order or final order. The distinction has to be kept in mind because in the present case the Sub-Divisional Magistrate has passed final order but without coming to the stage when he could validity pass such an order.
6. The position of law on the point is amply given in the authority, Smt. Premlata v. Ram Lubhoya, 1978 All Cri C 336, at pages 338 and 339 : (1978 Cri LJ 1822) and I can do no better than to reproduce the words of the then Hon. P. N. Bakshi. J. in the said authority :
…From a perusal of Section 146(1), Cr. P. C. it is clear that an order of attachment can be passed by the Magistrate on the existence of either of the following three conditions:-
1. When after passing a preliminary order under Section 145(1), Cr. P. C. he considered the case one of emergency,
2. When he decides (obviously after taking the entire evidence) that none of the parties was in possession on the date of the preliminary order, and
3. When in spite of the evidence being recorded he is unable to satisfy himself as to which of the party was in possession of the disputed land on the date of the preliminary order.
The first order of attachment would obviously be passed during the continuance of the proceedings under Section 145, Cr. P. C. before the Magistrate. However, if he considers during the course of the proceedings that an emergency has arisen he is entitled to pass an order directing attachment. In that case inspite of the order of attachment the proceedings under Section 145, Cr. P. C. shall continue to be followed. The parties will file their written statements, documents, affidavits and produce evidence as they may desire and thereafter under sub section (4) of Section 145, Cr. P. C. the Magistrate will decide which of the party was in possession of the disputed property on the date he passed the preliminary order under Sub-section (1) of Section 145(1), Cr. P. C. Thus an order of emergency attachment in the first instance cited above will not conclude the proceedings. As a matter of fact, when a decision has been arrived at under Section 145(4), Cr. P. C. by the Magistrate and he gives his verdict holding one party to be in possession of the property in dispute and forbidding interference with his possession by the other party, he will in those circumstances lift the emergency attachment imposed by him. In other words, thee mergency attachment is just a protective, measure to prevent breaking of heads till such time as the Magistrate gives his final decision under Section 145(4), Cr. P. C. As such an order passed under the first clause of Section 146, Cr. P. C. will be an interlocutory order.
The other two types of attachment, however, fall in a different category. The jurisdiction to pass such an order arises only in two contingencies mentioned above. After the case is concluded, he decides that no party is in possession, he is empowered to attach the property till the rights of the parties are decided by a competent Court. If, on the conclusion of evidence he is unable to decide which party is in possession, he is still empowered to attach the property till the decision of their rights by a competent Court. In other words the attachment contemplated under the second and the third clauses of Section 146 is a final order so far as the jurisdiction of the Magistrate in proceedings under Section 145, Cr. P. C. is concerned. After attaching the property, subject, however, to the requirements of Section 146(2), Cr. P. C. the Magistrate becomes functus officio and the whole dispute thereafter inter parties with regard to their rights can only be decided by a competent Court, civil or revenue, whatever it might be. Therefore, the attachment order passed under the second and the third clause of Section 146(1), Cr. P. C. would be a final order, and it will continue to be operative so long as the parties do not approach the proper forum for vindication of their rights. Such an order will conclude the proceedings under Section 145, Cr. P. C. and as such it would be a final order….
7. In the aforesaid authority reliance has been placed on a Supreme Court Authority, Chandu Naik v. Sitaram B. Naik, AIR 1978 SC 333, wherein the Apex Court has expressed the same view in para 7 of its judgment.
8. In the authority, Smt. Tulsi Devi v. Bhagat Ram 1983 Cri LJ 72 (Him Pra) Hon’ble Vyas Dev Misra, C. J. expressed the position of law in the following words at page 74 of his judgment:
… Attachment can be ordered in one of the three circumstances envisaged by this section. These are (1) case of emergency, (2) none of the parties being found in possession in terms of Section 145, and (3) inability of the Magistrate to satisfy himself as to who are the parties in such possession of the subject of dispute. The last two will only arise after the proceedings under Section 145 have been completed. However, the first may arise at any time.
9. Learned counsel for the petitioner relied on a Division Bench authority of this Court, Indra Deo Pandey v. Smt. Bhagwati Devi 1981 All LJ 687 in support of his claim that the order dated 19-6-1995 (Annexure No. 3) was only an interlocutory order against which the revision was not competent. I have gone through this authority. In my view, this authority does not at all support the contention of the learned counsel for the petitioner. Firstly, it has to be kept in mind that in the case before the Full Bench, the order under Section 146(1) Cr. P. C. was passed by the Sub-Divisional Magistrate during “pendency of proceedings initiated under Section 145 Cr. P. C.” directing that the plots in respect of which there existed a dispute causing apprehension of breach of peace be attached and directing the attachment of the crops standing thereon. (It was thus a case of emergency attachment falling in Ist category of the cases contemplated under Section 146(1) Cr. P. C. when after passing a preliminary order under Section 145(1) Cr. P. C. the Magistrate considered the case of one of emergency). So the entire discussion in this authority has to be looked into from that angle. In this authority certain observations of the Apex Court in various authorities were also quoted. Thereafter it was said in the said authority :-
…While making an order under Section 146 for attaching the property in dispute the Magistrate is not required to make any inquiries or to adjudicate the right of any person to remain in possession of the property in dispute or to make any other adjudication of any other type. All that he has to be satisfied is that there is a case of emergency namely that breach of peace is likely to occur even before he has been able to hold a proper inquiry with regard to possession under Section 145 of the Code and if that be so, he can take steps to attach the properties and to arrange for its management with the twin object of avoiding breach of peace being committed by either of the two parties and to safeguard the interest of the party which may be found to be entitled to its possession either in accordance with final orders made under Section 145 or a decision given by competent Civil Court. Viewed in this light, it is apparent that the order for attachment of property under Section 146(1) of the Code made during the pendency of the proceedings under Section 145 is an Order purely of an intermediate or temporary nature. It neither decides nor purports to affect any legal right of any of the parties. The order is made for the purposes of effective adjudication of proceedings initiated under Section 145 of the Code. It does not result in the disposal of any part of the controversy between the parties or the proceedings under Section 145….
10. There, the case in hand was of emergency attachment under the Ist category under Section 146(1) Cr. P. C. The Full Bench in the said authority further said :-
…A comparative study of Sections 145 and 146 as they stood before 1955 and after 1955 under the old Code and as they now stand under the 1973 Code, also leads to the conclusion that the Magistrate’s jurisdiction does not end as soon as attachment is made on the ground of emergency ….
11. The Full Bench, therefore, upheld the view taken by the Addl. District Judge holding that the order passed by the Sub-Divisional Magistrate of emergency attachment under Section 146(1) Cr. P. C. was not revisable.
12. The crux of the matter is whether the attachment has been made during these proceedings on the ground of emergency as in the case of the Full Bench or to conclude the proceedings after the magistrate coming to a conclusion that he was unable to decide as to which party was in possession of the land in dispute at the relevant date, or within two months next before it. In the latter case the proceedings are concluded by the order passed by the Magistrate and the Magistrate becomes functus officio and when the controversy between the parties is decided by the Court of competent jurisdiction, the attachment order would cease to operate and the Magistrate would be bound to direct delivery of possession to the party held entitled thereto by the competent Court.
13. In the present case, obviously, the order passed by the Magistrate under Section 146(1) Cr. P. C. dated 19-6-95 (Annexure No. 3) was one falling in the 3rd contingency mentioned earlier and so was a final order and the Addl. District Sessions Judge had ample jurisdiction to exercise his revisional jurisdiction.
14. As discussed above, the stage of passing an order in the 3rd category of cases under Section 146(1) Cr. P. C. would arise only after the parties have filed their written statements of claim and led their oral and documentary evidence in support of their respective claims and the Magistrate had considered the rival claims and the evidence led by the parties and then at that stage was unable to come to any finding as to which party was in possession at the relevant date. Here, the Magistrate even before the date fixed for filing of the written statement by the parties and for leading of oral and documentary evidence by the parties passed the order dated 19-6-95 (Annexure No. 3). That order was obviously illegal and without jurisdiction and the Addl. District and Sessions Judge was right in setting aside the same.
15. It may be that the Addl. District Sessions Judge has also found the order dated 19-6-95 (Annexure No. 3) bad on the ground that there was no evidence to show that there was a case of emergency attachment due to apprehension of breach of peace. This observation may not be proper because the Magistrate could form his satisfaction even on the basis of the police report submitted to him. However, it makes no difference because the impugned order of the Addl. District Sessions Judge dated 14-2-1996 (Annexure No. 7) can safely be supported in view of the facts mentioned earlier that the Magistrate was yet to entertain the statements of claim made by the parties and the oral and documentary evidence adduced by them and to consider the same before passing the final order of attachment, regarding the subject matter of the dispute and directing its continuance till the title or possession was determined by a competent Court.
16. Learned counsel for the petitioner also placed reliance on an unreported judgment dated 3-12-1990 passed by Hon’ble K. Narayan, J. in Criminal Revision No. 423 of 1985, Atma Ram v. Hari Singh. In this authority it was said that there was an attachment and in view of Section 146 Cr. P. C. it does not allow any jurisdiction with the Magistrate to give a finding on the issue of possession after the attachment has been made. The learned Judge has mentioned all the three categories of clause (1) of Section 146 Cr. P. C. but it appears that his view was that once the attachment is made under Section 146(1) Cr. P. C. the Magistrate becomes functus officio. While allowing the revision the learned Judge made the observation that the attachment shall continue unless vacated or until decision of a competent Court or otherwise in accordance with law with aspects. I am unable to agree with this view of the learned Judge as it is contrary to the settled legal position on the subject. In the case of emergency attachment in Ist category under Section 146(1) Cr. P. C. the proceedings under Section 145 Cr. P. C. shall continue and evidence has to be taken on the point of possession. The learned Magistrate has to decide whether the first party is in possession, or the second party is in possession, or none of them is in possession and he has also the opportunity to come to the conclusion that he is unable to decide as to which party is in possession at the relevant date and then he has to pass appropriate orders as the situation may permit.
17. In the result the writ petition fails and is dismissed.