Guha Ray, J.
1. This is a reference made by the Additional Sessions Judge, Alipore, under Section 438, Criminal P. C. with a recommendation that the order of the learned Magistrate, D/- 28-7-1955 directing that proceedings under Section 147, Criminal P. C. be set aside. It appears that this action was taken on a police report which is to the effect that there is a dispute over the possession of C. S. plot No. 1159 in Khatian No. 419 in Noapara Mouza, the first party, who are here the opposite parties, wanting to cultivate the land and the 2nd party petitioners, objecting to the first party cultivating that land on the ground that the members of the 2nd party claim it as a park.
It was further reported by the police that on going to the locality the police officer found a large number of boys cleaning up the bushes and stones of the land. He also found bamboo goal posts on either side which appeared to him to have been posted just then. It was further reported that there were no goal posts when notices under Section 147, Order P. C. were served upon both the parties.
The learned Judge says that although the pro-ceedings were directed to be drawn up under Section 147, the body of the order by which he evidently meansthe actual proceeding shows that it was couched in the language of Section 145, Cr. P. C. It is undoubtedly true that in the actual proceeding the learned Magistrate mentioned that a dispute was likely to induce a breach of the peace between the parties over the possession of the land described.
A proceeding under Section 147, Cr. P. C. can be Initiated only if there is a dispute not over the possession of the land but over the right of user of the land in question. Of course, if there is a dispute between the parties over the right of user of the land one might say somewhat loosely that the dispute is really over the possession of the land] but in drawing up proceedings it is absolutely es-sential that the learned Magistrate should adhere to the terms of the section under which the proceedings are drawn up.
The proceedings therefore as actually drawn up have got to be modified but that does not necessarily mean that the entire proceedings should be quashed, for evidently the police report disclosed a likelihood in the near future of a breach of the peace over the dispute in regard to the 2nd party's alleged right of user of the land in question as a park.
On the basis of that report there is no doubt that the learned Magistrate has jurisdiction to draw up proceedings under Section 147, Cr. P. C. There is therefore no ground for interference with the learned Magistrate's discretion in the matter.
2. The next question is whether after having directed proceeding to be drawn up under Section 147, Cr. P. C., the learned Magistrate was entitled under the law to pass an interim order of attachment as he has done. It is argued on behalf of the 2nd party that there is no provision in Section 147, Cr. P. O. for such an attachment and Section 146 has no application to proceedings under Section 147, Cr. P. C.
It is undoubtedly true that Section 147 itself doea not contain any provision for an interim order of attachment. It is equally true that Section 146, Cr. P. C. which applies only at the conclusion of the enquiry when the Magistrate either decides that none of the parties is in possession or is not in a position to decide which of them is in possession, is limited to proceedings under Section 145, Cr. P. C. and does not apply to proceedings under Section 147, Cr. P. C.
But Section 147(1) provides that a Magistrate after the proceeding has been drawn up under Section 147 shall enquire into the matter in the manner provided in Section 145 and the provisions of that section shall, as far as may be, be applicable in the case of such enquiry. The procedure of enquiry is laid down in Section 145(4). The proviso to that sub-section is as follows:
'Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.'
3. This proviso obviously means that if during the inquiry the Magistrate thinks that unless such an order is made the breach of the public peace may actually take place he may attach the. subject-matter of the dispute. It is argued on be-half of the 2nd party that the subject-matter of the dispute in this case as disclosed in the polica report is the right of the 2nd party to use the land as a park and not the land itself, so that it is only the right of the 2nd party to make use of the land as a park that can be liable la attachment under Section 145(4).
Although the dispute is really over the ques-tion whether the 2nd party has a right or not to use the land as a park the subject of the dispute is the land itself and not the right of user of that land. Consequently, there is nothing wrong or illegal with the interim order of attachment made by the Magistrate. But as already pointed out the actual proceeding under Section 147, Cr. P. C. has to be modified so as to conform to the language of that section.
4. Subject to this observation the learnedJudge's reference must stand rejected.