1. This is a revision application directed against an order of the City Munsiff Magistrate First Class, Srinagar, by which lie has attached revenue-paying land, measuring 13 kapals and 5 marlas, bearing Khasra Nos. 268 and 517, along with a house and a Kothar, situate in Luchhmanpura, Batnialna, under Sub-section (4) of Section 145, Criminal Procedure Code. It appears that the applicants had first presented a revision application before the Sessions Judge, Kashmir, who dismissed it on the ground that the Magistrate had not committed any illegality, This revision application shall, therefore, be treated as a revision against the order of the Sessions Judge.
2. I have heard counsel for the parties at length. It appears that on 27th April, 1957 an application under Section 145/107, Cr. P. C. was presented before the City Munsiff Magistrate, and on the same date, after recording the bare statement of the non-applicant (applicant before him), he made an order in terms of Sub-section (1) of Section 145 and then without issuing notice to the other side he also made an order under proviso 2 to Sub-section (4) of Section 145, Cr. P. C., in which he said that as there was a likelihood of imminent breach of the peace, the property in dispute should be attached. It is true that the discretion of the Magistrate in ordering attachment of the property in dispute for maintenance of peace should not be lightly interfered with. But at the same time it has to be borne in mind that Section 145 (4), Cr. P. C., confers extraordinary jurisdiction upon a Magistrate and this power has got to be exercised with great caution (vide Atma Singh v. Harnam Singh AIR 1926 Lah 205 (A). In cases where this extra-ordinary power has not been properly exercised by the trial Court, this Court should not hesitate to interfere in the exercise of its revisional jurisdiction.
3. It has been submitted before me that the trial Magistrate has committed a number of errors during the course of these proceedings. In the first place, his order does not disclose how he was satisfied that the case was one of such emergency that he could pass an order of attachment of the property without hearing the objections of the other side and without satisfying himself which party was really in possession at that time. In the second place, as submitted by the learned Counsel for the applicants, the trial Magistrate on the application of the applicants (non-applicants before him) directed the Supardar on 30th April 1957 to let them take away the crop on the land, but later on 4th May, 1957 on the application of the non-applicant (applicant before him) without hearing the applicants he cancelled his order dated 30th April, 1957 and further directed the police to attach the house and the Kothar on the land. Again execution of the order of attachment was entrusted to the police, while under Section 88 (4), Cr. P. C. attachment of revenue-paying land has to he made through the Collector of the District in which the land is situate.
It has also been brought to my notice that in view of these irregularities committed by the trial Court the Additional District Magistrate has transferred the proceedings to some other Court. It has also been contended before me that the land was in possession of tile applicants in pursuance of a judgment and decree of this Court and that the possession of the applicants was recorded in the revenue papers. I do not want to express any opinion on this contention of counsel for the applicants, but it is clear to my mind that the order pass-by the trial Court in this case dues not show on what material it has come to the conclusion that there was imminent danger of breach of the peace necessitating the order of attachment without hearing the other side. After careful consideration of all the circumstances in this case I set aside the order of attachment, and direct the trial Court to proceed to determine the application according to law. The trial Court would be free to attach the property in dispute provided, on proper consideration of the material before it, it can come to the conclusion that it can exercise the powers under proviso 2 to Sub-section (4) of Section 145, Cr. P. C, The revision application is accepted.