K.D. Sharma, J.
1. This is an application-in-revision filed by Narain Ram against an order of the Executive Magistrate, Nagaur, dated 9th December, 1976, by which western portion of Khasra No. 32 measuring 12 Bighas and 10 Biswas and situated in village Panchori was attached under sub-Section (1) of Section 146, Cr. P.C. and the Station House Officer, Panchori, was directed to take the land into his possession and the parties to get their respective claims decided by a competent court.
2. The brief facts giving rise to this revision-application may be stated as follows: Shanker Lal hereinafter referred to as party No. 1, presented an application under Section 145, Cr. P.C. in the court of the Executive Magistrate, Nagaur, on 20th July, 1976. It was alleged in the application that half of the agricultural land comprised in Khasra No. 32 and situated in village Panchori is in joint possession of the applicant and his mother Mst. Jamna and the other half belongs to Rugha Ram's son Narain Ram who has disposed it of to Mangi Lal, Koja Ram and Sita Ram, non-applicants, hereinafter referred to as party No. 2. by way of a registered sale-deed. Party No. 2 after purchasing the land from Narain Ram tried to interfere with the possession of the applicant and his mother over their half portion of the land. On 17th July, 1976, they caused damage to the crops of the applicant by running tractor ever them. The applicant asked party No. 2 to refrain from indulging in illegal activities but the latter prepared themselves for making an assault on the applicant with lathis and Pharsis. As the members of party No. 2 were bent upon ousting the applicant from his possession of the land, the applicant prayed to the Executive Magistrate, Nagaur, for initiation of proceedings under Section 145, Cr. P.C. against party No. 2 and for attachment of the subject of dispute as there was imminent danger of breach of the peace necessitating immediate action.
3. The Executive, Magistrate, upon receipt of the application, directed the Station House Officer, Panchori, to make an inquiry into the matter and to make a report after taking necessary action for maintaining peace. It appears that the Station House Officer, after making an inquiry into the matter, reported to the Executive Magistrate that the land in dispute should be attached, as the situation was tense and the parties were bent upon committing breach of the peace. The Executive Magistrate, relying upon the report of the Station House Officer, came to a conclusion that the case was one of emergency. He, therefore, outright attached the subject of dispute without drawing a preliminary order under sub-Section (1) of Section 145, Cr. P.C. It will not be out of place to mention that Shanker did not implead Narain Ram as a party in his application under Section 145, Cr. P.C. Narain Ram appeared before the Executive Magistrate and applied for being added a party to the proceedings on the ground that he has been in continuous possession of the land in dispute to the exclusion of Shanker Lal for the last so many years. The Executive Magistrate rejected Narain Ram's application and refused to add him a party to the proceedings under Section 145, Cr. P.C. Aggrieved by this order, Narain Ram has come up in revision to this Court.
4. I have carefully gone through the record & heard Mr. S.T. Porwal for Narain Ram applicant, & Mr. G.S. Mehta, for party No. 2 & Mr. R.N. Bishnoi for Shankerlal, opposite party No. 1. It has been contended on behalf of the applicant that the Magistrate committed an error in not adding Narain Ram as a necessary party to these proceedings under Section 145, Cr. P.C. According to Mr. S.T. Porwal, Narain Ram is the person who is directly concerned in the dispute, which is the foundation of the proceedings and, being an interested person, he should have been impleaded as a party, because, without hearing him, the Executive Magistrate was not empowered to attach the disputed land which has been in his continuous possession for the last no many years. Mr. R.N. Bishnoi, on the other hand, urged that there is no material on the record to show that the land in dispute is in possession of Narain Ram applicant and he is interested in the proceedings. In the absence of any material to show Narain Ram's interest in the land dispute, the Executive Magistrate was justified in not making him a party to the proceedings.
5. I have considered the rival contentions. There is no provision in Section 145 Cr. P.C. for addition of parties after the inquiry has commenced except in sub-Section (7) which provides for impleading the legal representatives of the deceased parties on the record. Sub-section (5) of Section 145 Cr. P.C. no doubt, provides that apart from parties, any other person interested may show that no such dispute as is likely to cause breach of the peace, concerning the land exists or has existed but this sub-section does not provide for addition of new parties to the proceedings. It allows intervention by an interested person for a specific purpose, i.e. for showing that no dispute likely to cause breach of the peace exists or his existed. But absence of any provision in Section 145, Cr. P.C. for addition of parties does not mean that the Magistrate has no jurisdiction to implead any person interested in the proceedings' even if such person is really concerned in a dispute, which is the foundation of proceedings. The words 'parties concerned in such dispute' used in sub-Section (1) of Section 145, Cr. P.C. include persons claiming to be in possession of the subject of dispute at the time of the preliminary order. These words do not merely refer to persons who are actual disputants or who are concerned in the threatened breach of the peace. In the present case Narain Ram did not place any material on the record to show that he was in possession of or really concerned in the subject of dispute at the relevant time. In these circumstances, I would have dismissed the revision application, but, there is a glaring error apparent on the record which persuades me to interfere with the order of the Magistrate and to set aside the attachment of the disputed land. The manifest error committed by the Magistrate is that he did not pass a preliminary order before he proceeded to attach the land under sub Section 145 of Section 146, Cr. P.C. Section 146 follows Section 145, Cr. P.C. It empowers the Magistrate to attach the subject of dispute at any time after making an order under sub-Section (1) of Section 145 Cr. P.C., if he considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145 or if he is unable to come to a conclusion as to which of the parties was then in such possession of the subject of dispute. The legality of an order under sub-Section (1) of Section 146 Cr. P.C. depends on its having been preceded by an order under sub Section (1) of Section 145, Cr. P.C., i.e. a preliminary order. The Executive Magistrate was, therefore, not empowered to pass an order of attachment without drawing a preliminary order under the preceding section, i.e. Section 145, Cr. P.C.
6. In this view of the matter, I accept the revision-application, set aside the order attaching the land in dispute, release the land from attachment and send the case back to the Executive Magistrate, Nagaur, to proceed in accordance with law if he is satisfied from the report of a police officer or on any other information that a dispute likely to cause breach of the peace exists concerning the referred to above land.