R.L. Narasimham, C.J.
1. This is a petition in revision against an order passed by Sri B. Misra, First Class Magistrate of Balasore, dropping a proceeding under Section 145, Cr. P. C. and directing the management of the disputed properties by a Receiver till the rights of the parties are decided by a competent Civil Court.
2. The proceedings were started in respect of 32 acres of land on the 20th February 1957 on the report of the local Police to the effect that there was apprehensions of breach of peace. The disputed properties were also attached and kept under the management of one Chintamoni Mohanty pending the disposal of the proceeding. The learned Magistrate, after scrutinising the affidavits filed by both parties and hearing them passed an order on the 9th September 1957 to the following effect :
'From the documents filed by the parties it is not possible to come to any definite conclusion about possession of the suit lands by either of the parties.'
Then he discussed the contention raised by the pleader for the second party to the effect that the proceeding was not maintainable as there were several distinct disputes in respect of different portions of the land which had been mixed up in one proceeding and that there ought to have been separate proceedings in respect of each of those disputes. He therefore dropped the proceeding under Sub-section (5) of the Section 145 Cr. P. C. and passed the following order:
'The Receiver Chintamoni Mohanty should credit the sale proceeds of paddy into the Treasury immediately if not done. He should arrange cultivation of the suit land by a third party with the knowledge of both parties till the rights of the parties are decided by a competent Court.'
3. The order of the learned Magistrate cannot be purported. He has nowhere stated that there was a further apprehension of breach of peace, in which case alone he would be justified in dropping the proceeding. On the other hand, his order shows that on a previous occasion also some portion of the disputed property formed the subject matter of another proceeding under Section 145 Cr. P. C. which was dropped by the Magistrate.
This did not prevent breach of peace, but on the contrary a Criminal case under Section 379 I.P.C. was started against some of the members of the 2nd party. There was again apprehension of breach of peace and on the Police report the present proceeding was initiated by the Sub-divisional Magistrate.
Thus, when past experience has clearly shown that the dropping of proceeding under Section 145 Cr. P. C. has not avoided breach of peace and the Sub-divisional Magistrate was compelled to start afresh proceeding under that section, including therein a larger area than was included in the earlier proceeding, the apprehension that breach of peace continues to exist is very obvious.
The Magistrate therefore thought that he could adopt a short cut by dropping the proceeding but keeping the property in charge of the Receiver, namely Chintamoni Mohanti, until the rights of the parties were decided by the Civil Court. In effect he has passed an order under Section 146 Cr. P. C. without expressly saying so and without following the procedure prescribed by law.
4. As pointed out by this Court in (Raidyanath Mohanty v. Kunja Behari Das 22 Cut LT 435 and in Dasa Mahanty v. Gadadhar Samal 23 Cut LT 37 : (AIR 1957 Orissa 92), it is always open to a Magistrate after dropping a proceeding under Section 145 Cr. P. C. to pass ancillary orders regarding the custody of the attached property and, if it is possible to determine the status quo ante, to restore the property to the party from whose possession it was taken.
But such an order must, in reality, be ancillary, i.e. in the nature of a winding up order. The aforesaid decisions of this Court were based on Jam Bhambbo Khan v. Makhdum Muhammad Hassan, AIR 1942 Sind 117; Raj Deo Singh v. Emperor AIR 1948 All 425 and Velur Devastlianam v. Sambandmurthi Nainar, AIR 1952 Mad 531, the last of which was based on two earlier decisions of the Madras High Court reported in Suryanarayana v. Ankineed Prosad Bahadur ILR 47 Mad 713 : (AIR 1924 Mad 795) and Narasayya v. Venkiah ILR 49 Mad 232 : (AIR 1925 Mad 1252).
5. But these decisions should not be taken as giving authority to a Magistrate by dropping a proceeding under Section 145 Cr. P. C. to evade his responsibility to decide, on the basis of affidavits of the parties before him and on other evidence, as to which party was in possession, prior to the commencement of the proceeding and to direct the disputed property to be kept in charge of a third party until the rights of both parties are decided by a Civil Court.
For these purposes there are distinct provisions in Sub-section (6) of Section 145 and in Section 146 Cr. P. C. which should be followed by the Magistrate. The Magistrate should make a serious effort to find out on the basis of materials on record, as to which party was in possession either on the date of commencement of the proceeding, under Section 145 Cr. P. C. or within two months prior to that date. If he could definitely decide about such possession in favour of either party, he may pass an order under Sub-section (6) of Section 145 Cr. P. C.
If on the other hand, he is unable to decide about possession he should follow the provisions of Section 146(1) Cr. P. C. But under the guise of passing an ancillary order the Magistrate cannot render the provisions of Sub-section (6) of Section 145 Cr. P. C. or of Section 146 Cr. P. C. nugatory by dropping the proceeding under Section 145 Cr. P C. and then relying on the aforesaid two decisions of this Court for the purpose of either handing over the property to the party who, according to him, was in possession prior to the commencement of the proceeding or keeping it in charge of a third party receiver.
Such an order will not really be an ancillary order in a winding up proceeding, but will in essence, be an order under Sub-section (6) of Section 145 or Section 146 Cr. P. C. without complying with the safe-guards provided in these sections. I may in this connection specially refer to paragraph (8) at page 428 of AIR 1948 All 425, where the difficulty in ascertaining as to which party was in possession by merely dropping a proceeding under Section 145 Cr. P. C, was fully discussed.
6. It is of course impossible to specify is detail the various circumstances under which the Magistrate may be justified in dropping a proceeding under Section 145 Cr. P. C. Doubtless, if he is satisfied that there is no apprehension of beach of peace he may always drop the proceeding and cancel his order by virtue of Sub-section (5) of Section 145 Cr. P. C.
Ordinarily such satisfaction' about the disappearance of the apprehension of breach of peace will arise only if the parties settle their dispute and in that event there should be no difficulty in handing over the attached property to either party as may be agreed upon between the rival claimants.
But if one of the parties objects to the other party being put in possession of the disputed property, it is obvious that the apprehension of breach of peace still continues and the Magistrate would not be justified in dropping the proceeding under Section 145 Cr. P. C. but he should continue and complete the proceeding in accordance with law.
7. In the present case, the only reason given by the learned Magistrate for dropping the proceeding is its non-maintainability on the ground that there were separate disputes between the same parties in respect of several parcels of the disputed property and that consequently several distinct proceedings under Section 145, Cr. P. C. should have been drawn up.
In such circumstances it is clear that the apprehension about breach of peace had not disappeared and the Magistrate, while dropping the present proceeding should have drawn up separate proceedings in respect of various parcels of the disputed property and then disposed of the same in accordance with law. The Magistrate should not have evaded the provisions of the Criminal Procedure Code by adopting a short-cut with a view to save himself from the trouble of hearing several proceedings under Section 145 Cr. P. C.
8. I would therefore set aside that portion of the Magistrate's order dated the 9th September 1957 which directs the disputed property to be kept in charge of Chintamoni Mohanti till the rights of the parties are decided by a competent Court. The Magistrate may first examine the question as to whether apprehension of breach of peace continues to exist, and whether there is only one dispute between the parties or several disputes in respect of separate parcels of the disputed property. He may then start a fresh proceeding or several proceedings, as the case may be, under Section 145, Cr. P. C. and thereafter dispose of the same according to law bearing in mind the observations contained in this judgment.