P.C. Borooah, J.
1. In this Rule, the petitioner Anil Barui, who is the second party to a proceeding under Section 145 of the Cr. P.C. (hereinafter the Code), being M. P. Case No. 484 of 1979, pending in the Court of Sri S. N. Roy, Sub-Divisional Executive Magistrate, Barrackpore, has impugned the validity of an order dated May 10, 1979 passed by the said Magistrate, drawing up a proceeding under the said section and directing the parties to submit their written statements in support of their respective claims as regards possession and also attaching the subject matter of the dispute viz. a timber shop, under Section 146(1) of the Code and appointing the O.C. Bizpur Police Station as a care-taker of the shop until further orders.
2. This Rule initially came up for hearing before Monoj Kumar Mukherjee, J, The learned Judge, in view of two conflicting single Bench decisions of this Court, has referred this matter to the Division Bench.
3. By an order dated April 11, 1979 the learned Magistrate called for a further detailed report from the O. C. Bizpur Police Station as it was not clear from the petition submitted by the 1st party, opposite party or from the police report as to which party was in actual physical possession of the disputed shop. On consideration of the second police report the impugned order was passed.
4. The first question that arises for consideration is whether after passing the order attaching the shop under the provisions of Section 146(1) of the Code, the Magistrate became functus officio?
5. In the case of Momin Ali Laskar v. Bejoy Krishna Roy 1978 Cal HC (N) 541 A.N. Banerjee, J. held that if in a case of emergency for the purpose of avoiding a breach of the peace, a Magistrate passes an order of attachment under Sub-section (1) of Section 146 of the Code, he does not lose his jurisdiction to continue further with the proceeding under Section 145 of the Code which he has already drawn up. Nag, J, in the case of Sagar Bhattacharyya v. Chhayarani Sarkar 1978 Cri LJ 1164 (Cal) held otherwise and observed, inter alia, that where on passing an order of attachment under Section 146 of the Code the Magistrate directs the parties to the proceedings under Section 145 of the Code to file their written statements, the order is illegal and without jurisdiction.
6. Section 146(1) of the Code contemplates of three contingencies whereby an order of attachment of the subject matter of the dispute may be made. They are:
(1) Where the Magistrate considers the case to be one of emergency; or
(2) If the Magistrate decides that none of the parties was in possession on the date the order under Section 145(1) of the Code was made or within two months preceding it in the case of dispossession; or
(3) If the Magistrate is unable to satisfy himself as to which of the parties was in such possession.
7. The second and third contingencies can possibly arise only after the Magistrate has completed the enquiry as contemplated by Section 145(4) of the Code, and here the Magistrate may pass an order of attachment until a competent Court has determined as to which of the parties is entitled to possess the subject matter of the dispute. Therefore, in such cases the proceeding under Section 145 of the Code must necessarily have been concluded. Whereas in the case of the first contingency an order of attachment may be made at any time after a proceeding under Section 145 of the Code is drawn up and before an order under Section 146(6) of the Code is made. Therefore the proceeding is still alive after an order of attachment in the case of emergency is made and the Magistrate does not become functus office after passing such an order. As such, we must respectfully disagree with the decision of Nag, J., in the case of Sagar Bhattacharyya v. Chhayarani Sarkar 1978 Cri LJ 1164 (Cal) (supra) on this point.
8. Coming back to the instant case, it was submitted by Mr. Bejoy Bhose, appearing on behalf of the second party' petitioner, that there was no justification on the part of the learned Magistrate to attach the property because there was no emergency. We cannot agree because from the impugned order it appears that the learned Magistrate had taken into consideration the second police report that the dispute was likely to lead to a serious breach of the peace resulting in loss of lives.
9. It was further submitted by Mr. Bhose that the disputed shop is a timber shop and if it is kept in the custody of the Officer-in-charge of Bizpur Police Station both the parties will suffer. As such the parties are at liberty to apply to the learned Magistrate for the appointment of a Receiver to run the shop till the proceeding under Section 145 of the Code initiated by the Magistrate is finally decided.
10. The Rule is thus disposed of. The department is directed to communicate this order as expeditiously as possible to the Magistrate concerned.
B.N. Maitra, J.
11. I agree.