1. The question for consideration in this reference by the Sessions Judge is whether a Magistrate, while cancelling the preliminary order under Sub-section (1) of Section 145, Criminal P.C., can order the restoration of property attached by him under Sub-section (4), to one of the patties to the proceedings.
2 This case started on an application by party 1 in respect of fields Nos. 147 and 610 of mauza Chaurahat, patti No. 2, in Hoshangabad tahsil. The applicant alleged that party 2 was threatening to remove the crops sown by the former, On 22-9-1948, the Magistrate promulgated an order under Sub-section (1) against party (1) and also directed attachment of the standing crops. Party 9 appeared and contended that the property had been acquired by their ancestors in 1921 and was all along in their possession.
3. The Magistrate recorded the evidence produced by the parties but came to the conclusion that there was no likelihood of a breach of the peace. The preliminary order was accordingly cancelled. The Magistrate, however, directed that the crops previously attached be returned to patty 2.
4. Relying upon Dashrath v. Tarachand 21 N.LR. 191 : A.I.R 1925 Nag. 297 : 26 CrI. L.J. 1378, the Sessions Judge referred the case to the High Court on the ground that the Magistrate had no power to order the restoration of the attached property to partys. In Dashrath v. Tarachand 21 N.L R. 191 : A.I.R 1925 Nag. 297 : 26 or. L.J. 1378(supra) Wadegaonkar A.J.C. expressed the view that a Magistrate cancelling a preliminary order under Sub-section (5) of Section 145 has no jurisdiction to order the delivery of the property attached as the effect of such an order would be to decide the question at issue between the parties. That case was followed by Pollock A.J C. in Emperor v. Narotam Singh 17 N.L.J. 225, but was doubted by Grille C.J. in Criminal Revn. No. 18 of 1941 dated 27-3-1941, According to the learned Chief Justice, if the Magistrate decides that there is no danger of a breach of the peace, the attachment terminates. It may, however, be noticed that the observations of the learned Chief Justice were obiter.
5. The reference came before Hemeon J. and the learned Judge recommended the case for a decision by a Bench of two Judges in view of the importance of the question involved, Hemeon J.'s opinion is that when a dispute is found to be non-existent there is no justification for the continuance of an order which derived its validity solely from the hypothesis that such a dispute actually existed.
6. Opinion in other Courts is divided. For the view taken in Dashrath v. Tarachand 21 N. L. B. 191 : A.I.R 1925 Hag. 297 : 26 Or. L.J. (78(supra) support was found by the learned Additional Judicial Commissioner in two decisions, one of the Calcutta High Court, Pigot v. Ali Mohammad 48 cal. 522 : A.I.R 1921 Cal. 30 : 22 Cri. L.J. 213 S. B. and another of the Madras High Court in Chinga Reddi v. Ramaswamy Gounden 16 Cri. L.J. 104 : A.I.R 1915 Mad. 588. In the Madras High Court decisions are, however, not uniform, The decisions in Natesa Naicken v. Baghavaohari A.I.R 1925 Mad. 827 : 26 Cri .L J. 512 and D. Narasayya v. C. Venkiah 4 J Mad. 232 : A.I.R 1925 Mad. 1252 : 27 Cri. L.J. 95 are in favour of the view taken in Dashrath v. Tarachand 21 N. L. R. 191: A.I.R 1925 Nag. 297 : 26 Cri. L.J. 1378 (supra). On the other hand.in Mahalakshmi v. P. Subbarayadu A. I. R 1923 Mad. 472 : 24 Cri. L.J. 783 on the finding of the Magistrate there was no likelihood of a breach of the peace. Ramesam J. ordered the proceeds realised on the sale of the attached crops to be restored to the persons from whose possession the crops were taken, viz., the petitioners who admittedly raised the crops. They were also held entitled to receive the rents realised. In Suryanarayana v. Ankineed Prasad 47 Mad. 713 : 25 Cri. L.J. 978 the Magistrate had dropped the proceedings under Section 145. It was observed that the sale proceeds of the crops that were standing on the lands at the time of attachment might have been ordered to A.I.R 1924 Mad. 795 be restored to the persons who had raised the crops, as was done in Mahalakshmi v. P. Subbarayadu A. I. R 1923 Mad. 472 : 24 Cri . L.J. 783 (supra). The Court, however, on the authority of In re Chinnathambi Rowthan 12 Cri. L.J. 104 : i I. 0. 591 Mad.) upheld the order that was actually passed in the case viz., that the money should be kept in deposit in the Court until one party or the other obtained the order in its favour. In Sattayya v. Sankara Eutumbara Rao : AIR1928Mad859 it was held that the proceedings under Section 115 having been dropped, the Magistrate should have directed the receiver appointed by him to hand over the property to the person from whose possession it was taken. The order continuing the attachment was cancelled.
7. In Daljit Singh v. Tej Singh 15 Luc. 19 : A.I.R 1939 Oudh 84 : 40 Or. L.J. 930 reliance was placed on the decision in Dashrath v. Tarachand 21 N.L.B. 191 : A.I.R 1925 Nag. 297 : 26 Cri. L.J. 1378 (supra) to set aside the order of the Magistrate directing the delivery of the property to one of the parties to the proceedings. It may, however, be observed that the Court was of the opinion that an order continuing the attachment was an appropriate order to pass in that case since release from attachment might have resulted in a conflict between the parties or their servants before action could have been taken by the authorities. The view taken by the Chief Court of sand is that if an order under Sub-section (1) of Section 145 is cancelled, under subs. (5) the parties must as far as possible be restored to the position which they occupied before the proceedings were started. The Magistrate has, therefore power to order the delivery of the property attached to the party from whom it was taken : see Jam Bhambho v. Makhdurm I.L.B. (1942) Ear. 120 : A.I.R 1942 Bind 117 : 43 Cri. L. J 876.
8. In view of the state of authorities, it is necessary to confine our attention to the terms of Section 145. It is clear that the jurisdiction of the Magistrate to act under Section 145 depends on the existence of a dispute likely to cause a breach of the peace concerning any land or water or the boundaries thereof. For the purposes of the section, subs. (2) defines 'land or water' as including 'buildings, markets, fisheries, crops or other produce of land and the rente or profits of any such property'. The second proviso to Sub-article (4) empowers the Magistrate if he considers the case one of emergency to attach the subject of dispute pending his decision under the section. Sub-section (5) directs the cancellation of the preliminary order made under Sub-section (1) whenever the Magistrate is satisfied that no such dispute as is mentioned in Sub-section (1) exists. Sub-section (5) goes on to provide that all further proceedings shall be stayed. But it is obvious that the attachment effected under Sub-section (4) lasts only till the Magistrate's decision under the section, If the proceedings continue and the Magistrate is not in a position to decide who is in possession, then he is empowered to attach the subject of dispute under Sub-section (1) of Section 146.
9. The existence of a dispute likely to cause a breach of the peace is a condition precedent to the exercise of jurisdiction by the Magistrate under Section 145. Where the condition necessary to-found jurisdiction is absent, the Magistrate acts under Sub-section (5) and cancels the preliminary order passed under Sub-section (1). There would be nothing wrong if the Magistrate cancelling the preliminary order cancels the order of attachment as well. The cancellation of the order of attachment is not ''further proceedings' referred to in sub.3. (5) but is only a direction incidental to and consequent upon the order cancelling the preliminary order passed under Sub-section (1). It is but right that when the jurisdiction to not under the section is found wanting the Magistrate should restore the status quo ante by directing the delivery of the property to the party from whom it was attached. This may not, however, be possible in each and every case because of the difficulty in determining from whom the property was attached. In fact such was the difficulty in Pigot v. Ali Mohammad 48 Cal. 522 : A.I.R 1921 Cal. 30 : 22 Cri. L.J. 218 .. In that case the Court was not in a position to determine from whom the lac was attached. Bo it was thought that the proper course was to keep the property in the custody of the Court pending decision by a civil Court on the question of title to the lac. Such again was the position in Jam Bhambho v. Makhdum I.L.R. (1943) Kar. 120 : A.I.R 1942 Bind 117 : 43 Cr. L.J. 876 where it was not possible to tell from the record in whose possession the Crops were when the attachment took place. In all such cases when it is not possible to determine the status quo ante, the appropriate order for the Magistrate to pass is to retain the property in the custody of the Court and direct the parties to have recourse to a civil Court to obtain possession of the property. Otherwise the Magistrate baa in our judgment the jurisdiction to direct restoration of the property to the person from whom it was attached. The view taken in Dashrath v. Tarachand 21 N.L.R, 191 : A.I.R 1925 Nag. 297 : 26 Cr. L.J. 1378 (supra) cannot be accepted.
10. In the present case the order of the Magistrate directing delivery of the attached property by Tejram to party 2 cannot, therefore, be called in question on the ground of lack of jurisdiction, The order was not challenged on the ground of propriety. From the material on record it is clear that the crops were raised by party 2 who was in possession when the attachment took place. The order of the Magistrate was proper and does not call for any interference. The reference is rejected. The records of the case shall be returned.