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PETITIONER: MATHURALAL

       Vs.

RESPONDENT: BHAWARLAL & ANR.

DATE OF JUDGMENT13/09/1979

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) DESAI, D.A.

CITATION:  1980 AIR  242            1980 SCR  (1) 620  1979 SCC  (4) 665

ACT:      Code of  Criminal Procedure, 1973-Ss. 145 and 146-Scope of-Magistrate if  competent to  proceed with  enquiry  after attaching the property in dispute.

HEADNOTE:      Apprehending breach  of peace  on account  of a dispute over a  house between  the appellant  and the respondent the Sub-Divisional Magistrate  passed a  preliminary order under s. 145(1),  Cr.P.C., 1973  and later  attached  the  subject matter of  dispute under s. 146(1) on the ground that it was a case of emergency. The appellant’s objection that once the subject of  the dispute  had been  attached under s. 146, he was not  competent to  proceed with the enquiry under s. 145 was overruled  by  the  Magistrate.  Having  failed  in  his revision petitions  before the  Sessions Judge  and the High Court the appellant preferred an appeal to this Court.      It was  contended on behalf of the appellant that while under the  previous Code  it was  permissible to  attach the subject of  dispute pending  enquiry by  the  Magistrate  as contemplated by  s. 145  such attachment pending decision by the Magistrate  was not  permissible under  the present Code and that  once the  Magistrate effected an attachment he had nothing further  to do  except await  the  decision  or  the direction of the civil court.      Dismissing the appeal, ^      HELD:  It   is  wrong  to  say  that  the  Magistrate’s jurisdiction ends  as soon  as an  attachment is made on the ground of emergency. [632 C]      1. (a)  Sections 145  and 146 of the Criminal Procedure Code together  constitute a  scheme for  the resolution of a situation where  there is  a likelihood  of a  breach of the peace because  of a  dispute concerning any land or water or their boundaries.  If s.  146 is torn out of its setting and read independently  of  s.  145,  it  is  capable  of  being construed to mean that once an attachment is effected in any of the  three situations  mentioned therein, the dispute can only be  resolved by  a  competent  Court  and  not  by  the Magistrate effecting the attachment. But s. 146 cannot be so separated from s. 145. It can only be read in the context of s.  145.   Contextual   construction   must   prevail   over

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isolationist  construction.   That  is   one  of  the  first principles of construction. [629 A-C]      (b) On being satisfied about the existence of a dispute likely to  cause a  breach of peace, the Magistrate issues a preliminary order  stating the  grounds of  his satisfaction and calling upon the parties to appear before him and submit their  written   statement.  On   perusal  of   the  written statements he  would proceed  to record  evidence to  decide which of  the parties  was in  possession on the date of the preliminary order. If he decides that one of the parties was in possession  he declares  possession of  such party. If on the other 621 hand he  is unable  to decide who was in possession or if he is  of  opinion  that  none  of  the  parties  was  in  such possession, he  may say  so. If  he decides  that one of the parties was in possession he declares the possession of such property. In  the  other  two  situations  he  attaches  the property. Thus  a proceeding  begun with a preliminary order must  be  followed  up  by  an  enquiry  and  end  with  the Magistrate  deciding   in  one  of  three  ways  and  making consequential orders. [630 A-D]      (c) The  Magistrate may,  however, stop the proceedings at any time if one or the other of the parties satisfies him that there  has never  been or  that there  is no longer any dispute  likely   to  cause  a  breach  of  the  peace.  The Magistrate then cancels the preliminary order vide s. 145(5) except in this event a proceeding initiated by a preliminary order under s. 145(1) must run its full course. [630 E]      (d) One  of the  situations provided under s. 146(1) is that in  a case  of emergency  a Magistrate  may attach  the property at  any time  after making  the preliminary  order. There  is   no  express  stipulation  in  s.  146  that  the jurisdiction of the Magistrate ends with the attachment. Nor is it implied. The obligation to proceed with the enquiry as prescribed by  s. 145(4)  is against  any such  implication. [630 G]      2. The  position under the section before its amendment in 1955  was that  the parties  that  the  right  to  adduce evidence and  the Magistrate  could take further evidence if he so  desired. There  were two  principal  changes  in  the section as  a result  of the  amendment  in  1955:  (1)  the preliminary order  was also to require the parties to put in documents and affidavits of such persons as they intended to rely upon  in support of their claims. The Magistrate was to decide  the   case  on   a  consideration   of  the  written statements, the  documents and  affidavits  put  in  by  the parties and  after hearing  them come  to a  conclusion. (2) Where he  was unable  to satisfy  himself as to which of the parties was  in possession  or where he decided that none of the parties  was in possession after attaching the property, the Magistrate was himself to refer the dispute to the civil court instead  of leaving  it to  the parties  to go  to the civil court.  He was  to obtain a finding of the civil court and thereafter  conclude the  proceeding  under  s.  145  in conformity with the decision of the civil court. The revised procedure having been found to be unsatisfactory ss. 145 and 146 were  again amended  so as  to revert  to  the  position obtaining before  the 1955  amendment. In the present s. 146 all situations  in which  an attachment  may be made are now mentioned together. [631 D-F]      Chandu Naik  & Ors.  v. Sitaram B. Naik & Anr. [1978] 2 SCR 353=1978 Crl. L. J. 356 distinguished.      Kshetra Mohan Sarkar v. Puran Chandra Mandal, 1978 Crl. L.J. 936, approved.

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JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 10 of 1979.      Appeal by  Special Leave  from the  Judgment and  Order dated  12-10-1978  of  the  Madhya  Pradesh  High  Court  in Criminal Revision No. 336 of 1978. 622      D. N. Mukherjee and N. R. Choudhary for the Appellant.      Dalveer Bhandari for Respondent No. 1.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J. On the report of the Station House Officer, Manak  Chowk, Ratlam,  that  there  was  a  dispute between  Mathuralal   and  Bhanwarlal   concerning  a  house situated in  Kambalpatti,  Ghas  Bazar,  Ratlam,  which  was likely to  cause a  breach of  the peace, the Sub Divisional Magistrate, Ratlam, passed a preliminary order under Section 145(1) of the Code of Criminal Procedure 1973, on Ist March, 1978. On  2nd March,  1978, the  learned Magistrate attached the  subject   of  dispute  under  Section  146(1)  Criminal Procedure Code  considering the case to be one of emergency. Thereafter, when  the learned  Magistrate wanted  to proceed with the  enquiry under Section 145 Criminal Procedure Code, an objection  was raised  by Mathuralal that such an enquiry was incompetent  once the  subject of  the dispute  had been attached under  Section 146  Criminal  Procedure  Code.  The objection  was   overruled  by   the   learned   Magistrate. Successive Revisions taken before the Sessions Judge and the High Court  having borne  no fruit, Mathuralal has filed the present appeal  by special  leave of  this Court.  The  High Court, we  may mention  here, thought  that the  matter  was concluded against  the appellant  by the  decision  of  this Court in Chandu Naik & Ors. v. Sitaram B. Naik & Anr.(1)      Shri Mukherji,  learned counsel for the appellant urged that under  Section 146  of the  Criminal Procedure  Code of 1973, an  attachment of  the subject  of  dispute  could  be effected in  three situations:  (i) if the Magistrate at any time after  making the order under Section 145(1) considered the case  to be one of emergency, or (ii) if he decided that none of  the parties  was then  in such  possession  as  was referred to  in Section  145, or  (iii) if  he was unable to satisfy himself  as to  which  of  them  was  then  in  such possession of  the subject  of dispute.  The  attachment  so effected, regardless  of the situation consequent upon which it was  effected, was  to subsist  until a  competent  Court determined the  rights of  the parties  with regard  to  the person entitled  to  possession.  This,  he  urged,  clearly indicated that  after an  attachment was effected it was the Civil Court  and not the Magistrate that was to have further jurisdiction in  the matter. He contrasted the provisions of Section 146(1)  of the  present code  with the provisions of Section 146(1)  and the  third proviso  to Section 145(4) of the Criminal  Procedure Code of 1898 as amended by Act 26 of 1955. He drew our 623 attention to  the circumstance  that the  third  proviso  to Section 145(4)  of the old Code empowered the Magistrate, if he considered  the case  one of  emergency,  to  attach  the subject of  dispute pending his decision under that Section, while Section  146(1) of  the previous  Code  empowered  the Magistrate  to   attach  the   subject  of  dispute  if  the Magistrate was  of the  opinion that none of the parties was then in possession or if the Magistrate was unable to decide

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as to which of them was in such possession and thereafter to refer to  the Civil  Court for decision the question whether any and  which of  the parties  was  in  possession  of  the subject of  dispute. Therefore,  he said, under the previous Code, in  the case  of attachment  because of  emergency the Magistrate was  himself competent  to decide the question of possession and  in the  other two  cases he was to refer the dispute to the Civil Court, whereas, under the present Code, in all  the three situations the Magistrate was to leave the matter for  adjudication  by  the  Civil  Court.  Thus,  the submission  of  Shri  Mukherji  was  that  while  under  the previous Code  it was  permissible to  attach the subject of dispute pending enquiry by the Magistrate as contemplated by Section  145,   such  attachment  pending  decision  by  the Magistrate was  not permissible  under the provisions of the present Code.  According to  him so  soon as  the Magistrate effected an  attachment he  had nothing further to do except await the decision or the directions of the Civil Court.      Though at first blush there appeared to be force in the submissions of  Shri Mukherji,  a  closer  scrutiny  of  the provisions  of   Sections  145   and   146   exposes   their unsoundness. It  may perhaps  be desirable, at this stage to extract the  provisions of  Sections 145  and  146,  to  the extent that they are relevant, in the Code of 1898 before it was amended  in 1955,  in the  Code of  1898  after  it  was amended in 1955 and in the Code of 1973: 624                             (a)      145 (1)  Whenever a District Magistrate, Sub-divisional Magistrate or  Magistrate of  the first  class is  satisfied from a  police report  or other  information that  a dispute likely to  cause a breach of the peace exists concerning any land or  water or  the boundaries  thereof, within the local limits of  his jurisdiction,  he  shall  make  an  order  in writing, stating  the grounds of his being so satisfied, and requiring the  parties concerned  in such  dispute to attend his Court  in person  or by pleader, within time to be fixed by such  Magistrate, and  to put  in written  statements  of their respective  claims as  respects  the  fact  of  actual possession of the subject of dispute.      (2)........      (3) A  copy of  the order  shall be  served  in  manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be                             (b)      145 (1)  Whenever a District Magistrate, Sub-divisional Magistrate or  Magistrate of  the first  class is  satisfied from a  police report  or other  information that  a dispute likely to  cause a breach of the peace exists concerning any land or  water or  the boundaries  thereof, within the local limits of  his jurisdiction,  he  shall  make  an  order  in writing, stating  the grounds of his being so satisfied, and requiring the  parties concerned  in such  dispute to attend Court in  person or by pleader, within a time to be fixed by such Magistrate  and to  put in  written statements of their respective claims  as respects the fact of actual possession of the  subject of dispute and further requiring them to put in such  documents, or  to adduce, by putting in affidavits, the evidence  of such  persons, as they rely upon in support of such claims.      (2).......      (3) A  copy of  the order  shall be  served  in  manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least

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one copy shall be                             (c)      145 (1)  Whenever an  Executive Magistrate is satisfied from a  report of a police officer or upon other information that a  dispute likely to cause a breach of the peace exists concerning any  land or  water or  the  boundaries  thereof, within his  local jurisdiction,  he shall  make an  order in writing, stating  the grounds of his being 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 statements of their respective claims as  respects the  fact of  actual possession  of  the subject of dispute.      (2).......      (3) A  copy of  the order  shall be  served  in  manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be 625 published by  being affixed  to some conspicuous place at or near the subject of dispute.      (4) The Magistrate shall then, without reference to the merits or  the claims  of any  of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear  the parties,  receive all  such evidence as may be produced by  them, respectively, consider the effect of such evidence, take  such further  evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:      Provided that.........      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.      (5) Nothing in this section shall preclude any party so required to  attend, or  any other  person interested,  from showing that  no such  dispute as aforesaid exists published by being  affixed to  some conspicuous  place at or near the subject of dispute.      (4) The Magistrate shall then, without reference to the merits or  the claims  of any  of such parties to a right to possess the  subject  of  dispute,  peruse  the  statements, documents and  affidavits, if  any,  so  put  in,  hear  the parties  and   conclude  the  inquiry,  as  far  as  may  be practicable, within  a period of two months from the date of the appearance  of the  parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:      Provided that........      Provided further that........      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.      (5) Nothing in this section shall preclude any party so required to  attend, or  any other  person interested,  from showing that  no such  dispute as aforesaid exists published by being  affixed to  some conspicuous  place at or near the subject of dispute.      (4) The Magistrate shall then, without reference to the merits or  the claims  of any  of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear  the parties,  receive all  such evidence as may be produced by  them, take such further evidence, if any, as he thinks necessary,  and, if  possible, decide whether any and

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which of  the parties  was, at the date of the order made by him under  sub-section (1),  in possession of the subject of dispute:      Provided that.........      (5) Nothing in this section shall preclude any party so required to  attend, or  any other  person interested,  from showing that no such dispute as aforesaid exists 626                             (a) or has existed; and in such case the Magistrate shall cancel his said 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.      (6) If  the Magistrate  decides that one of the parties was or  should under the first proviso to sub-section (4) be treated as  being in such possession of the said subject, he shall issue  an order declaring such party to be entitled to possession thereof  until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction  and when  he proceeds under the first proviso to sub-section  (4), may  restore to  possession  the  party forcibly and wrongfully dispossessed.      (7)........      (8)........      (9)........      (10)........      (146) (1)  If the  Magistrate descides that none of the parties was then in such possession, or is unable to satisfy himself                             (b) or has existed; and in such case the Magistrate shall cancel his said 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.      (6) If  the Magistrate  decides that one of the parties was or  should under  the 2nd  proviso to sub-section (4) be treated as  being in such possession of the said subject, he shall issue  an order declaring such party to be entitled to possession thereof  until elected therefrom in due course of law, and forbidding all disturbance of such possession until such eviction  and when he proceeds under the second proviso to sub-section  (4), may  restore to  possession  the  party forcibly and wrongfully dispossessed.      (7)........      (8).........      (9).........      (10)........      (146) (1)  If the Magistrate is of opinion that none of the parties  was then  in such possession, of the subject of dispute, he                             (c) or has existed; and in such case the Magistrate shall cancel his said 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.      (6) (a)  If the  Magistrate decides  that  one  of  the parties was  or should  under the proviso to sub-section (4) be treated  as being in such possession of the said subject, he shall  issue an order declaring such party to be entitled to possession  thereof until evicted therefrom in due course of law,  and forbidding  all disturbance  of such possession until such  eviction and  when he  proceeds under  the first proviso to  sub-section (4),  may restore  to possession the party forcibly and wrongfully dispossessed.      (b).........

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    (7).........      (8).........      (9).........      (10)........      (146) (1)  If the  Magistrate at  any time after making the order under sub-section (1) of Section 145 considers the case to be 627 as to  which of  them was  then in  such possession  of  the subject of dispute, he may attach it until a competent Court has determined  the rights  of the  parties thereto,  or the person entitled to possession thereof:      Provided that the District Magistrate or the Magistrate who has  attached the  subject of  dispute may  withdraw the attachment at  any time, if he is satisfied that there is no longer any  likelihood of a breach of the peace in regard to the subject of dispute.      (2)  When   the  Magistrate  attaches  the  subject  of dispute, he  may, if he thinks fit and if no receiver of the property, the  subject of dispute, has been appointed by any Civil Court  appoint a  receiver thereof, may attach it, and draw up a statement of the facts of the case and forward the record of  the proceeding  to a  Civil  Court  of  competent jurisdiction to decide the question whether any and which of the parties  was in  possession of the subject of dispute at the date  of the  order as  explained in  sub-section (4) of section 145;  and he  shall direct  the  parties  to  appear before the Civil Court on a date to be fixed by him:      Provided that the District Magistrate or the Magistrate who has  attached the  subject of  dispute may  withdraw the attachment at  any time, if he is satisfied that there is no longer any  likelihood of a breach of the peace in regard to the subject of dispute.      (1A).......      (1B).......      (1C).......      (1D).......      (1E).......      (2)  When   the  Magistrate  attaches  the  subject  of dispute, he  may, if he thinks fit and if no receiver of the property, the  subject of dispute, has been appointed by any Civil Court appoint a receiver thereof, 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  satisfy himself  as to  which of them was then in such possession  of the subject of dispute until a competent court has  determined the rights of the parties thereto with regard to the person entitled 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.      (2) When the Magistrate attaches the subject of dispute he may,  if no  receiver in  relation  to  such  subject  of dispute, has  been appointed  by any  Civil Court, make such arrangements as he considers proper for 628                             (a) who subject to the control of the Magistrate, shall have all the powers  of a  receiver appointed under the Code of Civil Procedure.      Provided that,  in the  event  of  a  receiver  of  the property,  the   subject  of   dispute,  being  subsequently appointed by  any Civil Court, possession shall be made over to him  by the  receiver appointed  by the  Magistrate,  who

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shall thereupon be discharge.                             (b) who subject to the control of the Magistrate, shall have all the powers  of a  receiver appointed under the Code of Civil Procedure.      Provided that,  in the  event  of  a  receiver  of  the property,  the   subject  of   dispute,  being  subsequently appointed by  any Civil Court, possession shall be made over to him  by the  receiver appointed  by the  Magistrate,  who shall thereupon be discharge.                             (c) looking after  the property  or if  he thinks fit, appoint a receiver thereof,  who shall have, subject to the control of the Magistrate  all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908):      Provided  that   in  the  event  of  a  receiver  being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate-      (a) shall  order the  receiver appointed by him to hand over the  possession  of  the  subject  of  dispute  to  the receiver appointed  by the  Civil Court and shall thereafter discharge the receiver appointed by him;      (b) may  make such  other incidental  or  consequential orders as may be just. 629      Quite obviously,  Sections 145  and 146 of the Criminal Procedure  Code   together  constitute   a  scheme  for  the resolution of  a situation  where there is a likelihood of a breach of the peace because of a dispute concerning any land or water  or their boundaries. If Section 146 is torn out of its setting  and read  independently of  Section 145,  it is capable of  being construed  to mean that once an attachment is  effected  in  any  of  the  three  situations  mentioned therein, the  dispute can  only be  resolved by  a competent Court and  not by  the Magistrate  effecting the attachment. But Section  146 cannot be so separated from Section 145. It can only  be read  in the context of Section 145. Contextual construction   must   surely   prevail   over   isolationist construction. Otherwise,  it may mislead. That is one of the first principles  of construction.  Let us therefore look at Section 145  and  consider  Section  146  in  that  context. Section 145  contemplates, first,  the satisfaction  of  the Magistrate that  a dispute  likely to  cause a breach of the peace  exists   concerning  any   land  or  water  or  their boundaries, and,  next, the  issuance of  an order, known to lawyers practising  in the  Criminal Courts as a preliminary order, stating the grounds of his satisfaction and requiring the parties  concerned to  attend his  Court and  to put  in written statements of their respective claims as regards the fact of  actual possession  of the  subject  of  dispute.  A preliminary order  is considered  so basic  to a  proceeding under Section  145 that  a failure  to draw up a preliminary order has  been held  by several  High Courts to vitiate all the subsequent  proceedings. It  is by  making a preliminary order that  the Magistrate  assumes jurisdiction  to proceed under Sections  145 and  146. In  fact,  the  first  of  the situations in  which an  attachment may  be  effected  under Section 146  of the  1973 Code  has to be "at any time after making the order under sub-section (1) of Section 145" while the other  two situations  have, necessarily,  to be  at the final stage  of the  proceeding initiated by the preliminary order. Now,  the preliminary order is required to enjoin the parties not  only to  appear  before  the  Magistrate  on  a specified date  but also to put in their written statements. Sub-section (3)  of  Section  145  prescribes  the  mode  of

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service of the preliminary order on the parties. Sub-section (4) casts  a duty  on the  Magistrate to  peruse the written statements of  the parties,  to receive the evidence adduced by them,  to take  further evidence  if  necessary  and,  if possible, to  decide which  of the parties was in possession on the  date of  the preliminary  order. If  the  Magistrate decides that  one of  the parties was in possession he is to make a  final order  in the  manner provided  by sub-section (6). Provision  for the  two situations where the Magistrate is unable  to decide  which of the parties was in possession or where  he is  of the  view that  neither of  them was  in possession is made in Section 146 630 under which  he may  attach the subject of dispute until the determination of the rights of parties by a competent Court. The scheme  of Sections  145 and 146 is that the Magistrate, on being  satisfied about  the existence of a dispute likely to cause  a breach  of the peace, issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to  appear  before  him  and  submit  their  written statements. Then  he proceeds  to peruse  the statements, to receive and  to take  evidence and  to decide  which of  the parties was  in possession  on the  date of  the preliminary order. On  the other  hand if he is unable to decide who was in such  possession or if he is of the view that none of the parties was  in such possession he may say so. If he decides that one  of the  parties was in possession, he declares the possession of  such party.  In the  other two  situations he attaches the  property.  Thus  a  proceeding  begun  with  a preliminary order  must be followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders.  There is  no half way house, there is no question  of stopping  in  the  middle  and  leaving  the parties to  go to the Civil Court. Proceeding may however be stopped at any time if one or other of the parties satisfies the magistrate  that there  has never  been or  there is  no longer any dispute likely to cause a breach of the peace. If there is  no dispute  likely to cause a breach of the peace, the  foundation  for  the  jurisdiction  of  the  magistrate disappears. The  magistrate  then  cancels  the  preliminary order. This  is provided  by Section  145  sub-section  (5). Except for  the reason  that there  is no  dispute likely to cause a  breach of  the peace  and as  provided  by  Section 145(5), a  proceeding initiated by a preliminary order under Section 145(1)  must run  its full course. Now, in a case of emergency, a magistrate may attach the property, at any time after making the preliminary order. This is the first of the situations provided in Section 146(1) in which an attachment may be  effected. There is no express stipulation in Section 146 that  the jurisdiction  of the  magistrate ends with the attachment. Nor  is it  implied. Far from it. The obligation to proceed  with the  enquiry as  prescribed by  Section 145 sub-section 4  is against  any such  implication. Suppose  a magistrate draws up a preliminary order under section 145(1) and immediately  follows it  up  with  an  attachment  under Section 146(1), the whole exercise of stating the grounds of his satisfaction  and calling  upon the  parties  to  appear before him  and  submit  their  written  statements  becomes futile if  he is  to have  no further  jurisdiction  in  the matter. And  yet he cannot make an order of attachment under Section 146(1)  on the  ground of  emergency  without  first making a  preliminary order  in  the  manner  prescribed  by Section 145(1).  There is  no reason  why we  should adopt a construction which will lead to 631

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such  inevitable   contradictions.  We  mentioned  a  little earlier that  the only provision for stopping the proceeding and cancelling  the preliminary  order is  to  be  found  in Section 145(5)  and it  can only be on the ground that there is no  longer any  dispute likely  to cause  a breach of the peace. An  emergency is  the basis  of attachment  under the first limb  of Section  146(1) and if there is an emergency, no one  can say  that there  is no dispute likely to cause a breach of the peace.      Let us examine if a comparative study of the provisions as they stood, before 1955 and after 1955 under the old Code and as  they now  stand under  the 1973  Code lead  us to  a conclusion  other  than  that  indicated  in  the  preceding paragraph. From  the comparative table of the provisions, it is seen  that there  were two  principal changes made by the 1955 amendment. The first was that the preliminary order was also to  require the  parties to  put in  documents and  the affidavits of  such persons as they intended to rely upon in support of  their claims.  The magistrate  was to decide the case on  a  consideration  of  the  written  statements  the documents and the affidavits put in by the parties and after hearing them.  The position earlier was that the parties had the right  to adduce  evidence and the magistrate could take further evidence  if he  so desired.  The second  change was that in  the two  situations where  he was unable to satisfy himself as  to which  of the  parties was  in possession  or where he decided that none of the parties was in possession, after attaching  the property, the magistrate was himself to refer the  dispute to  the Civil Court instead of leaving it to the  parties to  go to  the Civil Court. He was to obtain the finding  of the  Civil Court and thereafter conclude the proceeding under  Section 145  Criminal  Procedure  Code  in conformity with the decision of the Civil Court. The revised procedure introduced  by the 1955 amendment was not found to work satisfactorily  and,  therefore,  it  was,  apparently, thought desirable  to  revert  to  the  old  procedure.  The provisions of  Sections 145  and 146  of the  1973 Code  are substantially  the  same  as  the  corresponding  provisions before the  1955 amendment.  The only  noticeable change  is that the  second proviso  to Section  145(4)  (as  it  stood before the  1955  amendment)  has  now  been  transposed  to Section 146  but without  the words  "pending  his  decision under this  Section" and  with the  words "at any time after making the  order under  Section  145(1)"  super-added.  The change,  clearly,   is  in   the  interests   of  convenient draftsmanship. All  situations in which an attachment may be made are  now mentioned  together in  Section 146. The words "pending his  decision under  this section"  have apparently been omitted  as unnecessary  since Section 145 provides how the proceeding initiated by a preliminary order must pro- 632 ceed and  end and  therefore an attachment made ’at any time after making  under Section  145(1)’ can only continue until the termination of the proceeding. At the termination of the proceeding, if he finds one of the parties was in possession as stipulated, the magistrate must make an order as provided in Section 145(6) and withdraw the attachment as provided in Section 146(1) since there can be no dispute likely to cause a breach  of the  peace once  an order  in terms  of Section 145(6) is made.      In our  view, it is wrong to hold that the magistrate’s Jurisdiction ends  as soon  as an  attachment is made on the ground of  emergency. A  large number  of cases  decided  by several High  Courts some  taking one  view and  the other a different view  were read  to us.  We  do  not  consider  it

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necessary to  refer to  them except  to acknowledge  that we derived considerable assistance from the judgment of Lahiri, J., in  Kshetra Mohan  Sarkar v. Paran Chandra Mandal(1), in arriving at  our  conclusion.  We  may  also  add  that  the question now  at issue  did not  arise for  consideration in Chandu Naik  & Ors.  v. Sitaram B. Naik & Anr. (supra). What was decided  there was  that a  proceeding under Section 145 Criminal Procedure  Code did  not abate because of Section 8 of the  Maharashtra Vacant Land (Prohibition of unauthorised Occupation and  Summary Eviction)  Act, 1975.  In the result the appeal is dismissed. P.B.R.                                     Appeal dismissed. 633