1. This is a reference from the Additional District Magistrate of Bareilly, dated 22nd October 1943.
2. On 28th August 1942, a first class Magistrate of Bareilly passed an order and a reference was made to this Court by the Additional District Magistrate on 30th September 1942 with which I dealt on 18th May 1943. My order was rather brief and has been misunderstood by the first class Magistrate who had been unable to come to any conclusion under Section 145, Criminal P.C., as to who was in possession of the property when he made his inquiry and who, therefore, passed an order under Section 146, Criminal P.C., appointing a Receiver and ordering Anwar Ahmad Khan to file a declaratory suit within one month failing which the Anjuman would be put in possession. I remarked that it was not legal for the Magistrate to order Anwar Ahmad Khan to file a declaratory suit within one month failing which the property would be put in possession of somebody else. If the Magistrate considered that it was necessary for him to attach the property, it must remain attached until he was satisfied that, there was no longer any danger of a breach of the peace. The Magistrate on 21st June 1943 came to the conclusion that there was no longer any danger of a breach of the peace, ordered the property to be released and made over to Mt. Majidan. Against that order an application was filed in the Court of the District Magistrate and there has been this reference from the Additional. District Magistrate.
3. There are two steps in Section 145, Criminal P.C., which are not always kept clearly separate by Magistrates. In the first place a Magistrate has to be satisfied that there is a dispute likely to cause a breach of the peace and, if satisfied, he has to make an order under Section 145(1). But parties or other persons interested may under Section 145(5) object that there is no danger of a breach of the peace and the original order can then be cancelled under this sub-section. But if it is not cancelled, it becomes final. Of course, it can be set, aside by this Court in revision but unless the Magistrate has acted with gross irregularity, this, Court would never interfere in a matter of that kind. Secondly, when the Magistrate has finally held that there is a danger of a breach of the peace, he has to decide which party was in possession and to hand over to that party. If he is able to do this under Section 145, that order becomes final subject to the remarks I have already made about revision in this Court. It often happens however, that the Magistrate is unable to decide which party was in possession and he is forced to take action under Section 146. This is what happened in the present case. Until 1923 the order of the Magistrate under Section 146 was final but in 1923 a proviso to Section 146(1) was added and power was given to the District Magistrate or the Magistrate concerned to withdraw the attachment if !he was satisfied that likelihood of a breach of the peace no longer existed. The difficulty is for the Magistrate to obtain sufficient evidence to be satisfied on this point. I do not say that such evidence can never be obtained but obviously it is a great risk for him to say that there is no longer a likelihood of a breach of the peace when shortly before he has held that there was a likelihood. If the parties come into Court and assure the Magistrate that there is no likelihood, he may withdraw his attachment but the problem still remains to whom he should hand over the property and for this no provision is' made in Section 146. When once the matter has been agitated, it is essential that the Magistrate should hand over the property to somebody and unless there is agreement on this point, he must keep it attached until the question has been decided by a competent Court. In the present case the Magistrate has handed over the property to Mt. Majidan but against this an application was immediately made in the District Magistrate's Court and it has been referred to this Court, so it is obvious that there is no agreement at the present stage. Consequently, the Additional District Magistrate was perfectly correct in the interest of law and order in referring this matter to this Court and applying for re-attachment by the Receiver until the matter has been decided by a competent Court. I, therefore, order that the property should remain attached with the Receiver or if he has handed it over, he should re-attach it and in the meantime the parties concerned are at liberty to file a suit in the civil Court which will finally decide the matter. The Receiver will be entitled to take what steps he thinks necessary for the collection of any dues that Mt. Majidan may have received since the Magistrate's order of June 1943.
4. It will be seen from this that there is an ambiguity in Section 146, viz., there is no direction as to whom the Magistrate is to hand over the property which has been attached by himself if he is satisfied that there is no longer a likelihood of a breach of the peace. It is, therefore, impossible for him to withdraw the attachment order until it is agreed in Court as to whom the property should be made over. The Magistrate's satisfaction, therefore, that there is no longer a likelihood of a breach of the peace is equivalent to his being able to hand over the property to someone with the consent of the parties concerned, pending decision by the civil Court. Unless he is able to do this, he must keep the property under attachment.