M.L. Jain, J.
1. This revision under Section 397 Cr.P.C, has been directed against the order of the learned Sub Divisional Magistrate. Kotputli dated 5-7-75. In order to appreciate the controversy it would be worth while to state the facts briefly.
2. On 11-7-74 Sua Lal presented a complaint under Section 145 Cr.P.C. in respect of certain land situate in village Khadap District Jaipur which he alleged he had purchased from one Kishore Singh a year ago on 11-7-73. He alleged that he also obtained possession, but the opposite party, Nanchu and others were trying to take forcible possession of the same. He prayed that a preliminary order be drawn and the land be attached. The learned Sub Divisional Officer by his order dated 11-7-74 appointed the Naib Tehsildar as a receiver. The receiver took possession of the land on 12.7.74.
3. The opposite party filed the written state rent on 12-7-74 that they had purchased the land on 1-5-64 from Mst. Bhanwar Kanwar mother of Kishore Singh who was then a minor. They claimed that they were in possession of lend and Sua Lal had also filed a suit for possession against them. The order of attachment made on 11-7-74 was ex parte. They also filed affidavits in support of their case.
4. The learned Magistrate after considering the affidavits end the documents produced by the parties made an order that the opposite party were in possession of the land for the last 11 years which was sold when Kishore Singh was minor. When be grew up. then, he disowned the sale made by his mother and he mace another sale in 1973 in favour of Sua lal which led to the dispute, When the receiver took possession, the learned Magistrate as rendered in English further recorded that.
I have reached the conclusion that there did not exist on the date the preliminary order was made any such dispute between the petitioners and the non petitioners as was likely to cause immediate breach of peace and as made it necessity that the aforesaid lard should be attached.
The learned Magistrate therefore, then vacated the preliminary order under Sub-section (5) of Section 145 Cr.PC. and directed that the receiver should deliver the possession of the land to the opposite party.
5. The ground of challenge to this order can be stated in this manner. When a preliminary order has been made under Sub-section (1) of Section 145 Cr.P.C., such order can be cancelled by the Magistrate if it is shown that no such dispute as specified in Sub-section (1) of Section 145 'exists or existed'. But. if the Magistrate once attaches the property under Sub-section (1) of Section 146 Cr.P.C, then, the only course left open to him is to stay his hands further and to continue the attachment until competent court has determined the rights of the parties thereto with regard to the person entitled to the possessor there of. The Magistrate could however, withdraw the attachment if he is satisfied that 'there is no longer any likelihood of breach of peace with regard to the subject of dispute'. The learned Counsel for the revisioner contended that after attachment of the property the Magistrate can withdraw the attachment only if he was satisfied that there was no likelihood of breach of peace any longer in the future. But be had no jurisdiction to withdraw the attachment on the ground, as it was done in this case, that no likelihood of breach of peace existed at the time the preliminary order was drawn. In this case, the learned Magistrate further made a mistake in also declaring the possession which the the law did not permit to do so My attention was drawn to a decision of this Court Umrao v. Sheonarain 1975 RLW 353 wherein the main question was whether the order of attachment was final or interlocutory. Sharma J observed that under Sub-section (4) of Section 145 of the old Code the order of attachment was clearly an interlocutory order made in the case of emergency during the pendency of the proceedings under Section 145 Cr.P.C. But in the new Code, there is a change and now the Magistrate can under Section 146 thereof attach the property indefinitely until such time as the competent court has decided the rights of the parties to the subject of dispute with regard to the person entitled to the possession thereof. As soon as the land is attached in a case of emergency and the property is kept in the custody of the Court, the proceedings under Section 145 Cr.P.C., should come to an and. On the basis of these observations, it was urged that after the learned Sub-Divisional Magistrate attached the land, he could not withdraw the same on the ground that the preliminary order itself was not justified because there was even at that time no likelihood of breach of the peace. The impugned order of the learned Magistrate was therefore, contrary to law.
6. As against this, the learned Counsel for the non-petitioners submitted that the Magistrate's jurisdiction under Sub-section (5) of Section 145 to withdraw the preliminary order remains un affected inspite of attachment made under Sub-section (1) of Section 146 Cr.P.C. The order of attachment in cases of emergency can be and is usually obtained exparte along with the preliminary order and the Magistrate simultaneously issues a show cause notice. It therefore, cannot be that be cannot cancel his ex parte order subsequently Section 146 no doubt lays down that after attachment, the Magistrate has to a wait the decision on a competent court in the matter of possession. But at the same time Sub-section (5) of Section 145 gives him powers to cancel his preliminary order after hearing the parties and these powers do not terminate as soon as the attachment has been made, nor was any such construction placed by Sharma J. in the aforesaid case.
7. The learned Counsel for the non-petitioners also submitted that the non petitioners have been in possession by virtue of a sale and the receiver has also delivered possession to them, in these circumstances the court should not exercise its discerning to disturb the situation.
8. I have considered over the matter. According to Sub-section (1) of Section 145 Cr.P.C. whenever the Executive Magistrate is satisfied that a dispute likely to cause breach of the peace exists concerning any land etc., he shall make an order in writing, stating the grounds on which he to so satisfied and requiring the parties concerned in such dispute to attend his court in person or by pleader, on a specified date and time and to put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute. Sub-section (5) of the aforesaid section provided that any party so required to attend, of any other person interested shall not be precluded from mowing that no such dispute 'exists' or 'has existed' and in such cage, the Magistrate shall cancel his order, and all further proceedings thereon shall be stayed but subject to such cancellation the order of the Magistrate under Sub-section (1) shall be final.
9. Under Sub-section (1) of Section 146 if a Magistrate at any time after making the order under Sub-section (1) of Sections 145, considers the case to be one of emergency, he may attach the subject of dispute until a competent court has determined the rights of parties as to the possession thereof provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
10. Reading both these provisions together and adopting a harmonious construction, it appears to me that if the Magistrate attaches the property, then, he cannot determine the rights of the parties as to possession which shall be left to he determined by a competent court. But at the same time, he is authorised to withdraw the attachment if he is satisfied that there is no longer any likelihood of breach of the peace. How can or does this preclude the Magistrate from cancelling the preliminary order itself if it can be shown to His satisfaction that no such dispute any longer or at any time existed in the past. Inspite of the emergency attachment the power to cancel the preliminary order on the ground that no dispute existed at the time the Preliminary order was made, do not come to an end though the Magistrate is precluded from declaring possession of one party or the other.
11. Section 145 contemplates two stages, (1) making of preliminary order that a dispute concerning any etc exists and that such dispute is likely to cause breach or the peace; and (2) declaration of possession. The preliminary order become final under Sub-section (5) of Section 145 Cr.P.C. only if the Magistrate is not called upon to cancel it, or refuses to cancel it in shows that no such dispute exists or ever existed. By mere attachment of the property the Magistrate is not divested of the jurisdiction to cancel the preliminary order. There is nothing in the judgment of this High Court (1) cited above to support the contention that once the attachment is made, the Magistrate cannot act under Sub-section (5) of Section 145 Cr.PC. What appears to have been held in that judgment is that after attachment, the question of possession has to be decided upon not by the Magistrate but by the Competent court.
12. It may further be noticed that the proviso to Section 146 Cr.P.C. deals only with 'the withdrawal of the attachment' and Sub-section (5) of Section 145 Cr.P.C. deals with the cancellation of the preliminary order itself. Both are different matters. According to the proviso to Sub-section (2) of Section 146 Cr.P.C. the Magistrate can withdrawal the attachment and remove the receiver even though the matter is being determined by a civil or any other is withdrawn, then the sole base of the proceedings under Section 145 is will be for the latter court to look after the entire case, but if no party has chosen to go such court, then therefore, (sic) to contend that as soon as an attachment is made, the Magistrate can withdraw the attachment only if there is no likehood of breach of the peace any more, but he cannot cancel the preliminary order on the ground that no dispute likely to cause breach of the peace existed even when when the preliminary order was made . It does not appear to be the intention of the legislature that once subject of dispute is attached and a receiver is appointed the jurisdiction of the Magistrate to cancel the preliminary order is taken away. The seeming limitation which is contended to have been placed on Sub-section (5) of Section 145 by the proviso to Sub-section (1) of Section 146 is not real and will disappear if harmonious construction respecting the two provisions is adopted.
13. In this view of the matter the argument of the petitioner fails. He fail, on ore more ground. It appears from be record that the property was sold some eleven years ago when Kishore Singh was a minor and the opposite party had been in continuous possession but for the interruption of the receiver for a year or so, It does not seem to me to be a fit and proper case in which the revisional power should be exercised to direct the learned Magistrate to reinduct the receiver to possession.
14. I therefore, reject this revision.