A Magistrate has the authority to issue an order of attachment under Section 146(1) CrPC in cases of emergency, but must apply his judicial mind to the facts of the case and act with caution and responsibility.

( 1 ) THIS Criminal Revision Petition is filed under Sections 397 and 401 of criminal Procedure Code against a warrant of attachment issued by the Sub- divisional Magistrate Narsipatnam, under section 146 (1) Cr P G to the headquarters Deputy Taasildar Taluk office, Kotauratla.

( 2 ) THE Sub-Divisional Magistrate narsipatnam, having been satisfied that a dispute between the parties was likely to cause a breach of peace existed concerning the schedule mentioned lands, situated in Sanyasirajupalem, hamlet of b K Palli village of Kotauratla taluk, within his jurisdiction and having considered case as one of emergency to which an order of attachment should be issued, pending decision in the enquiry into the matter, directed the Headquarters deputy Tahslldar, Taluk Office, Kotauratla, to attach the property under dispute by taking and keeping possession thereof including standing crop, fruit bearing trees etc. , and to hold the land under attachment until further orders by him and to return the warrant executed on or before 15-5-1984.

( 3 ) THE only contention raised by the learned counsel for the petitioners in this revision petition is that the learned sub-Divisional Magistrate has no authority to pass the impugned order, directing attachment of the property when the dispute, with regard to the same property was pending before the Land Reforms appellate Tribunal, Visakhapatnam, and this Court and the rights of the petitioners herein who are the tenants were protected.

( 4 ) THE revision petitioner have not furnished any material information of the case. There is nothing on record to show as to when the preliminary order was passed under section 145 (1) Cr P C and what exact order was passed under section 146 (1) Cr. PC. But it is disclosed from the impugned warrant issued by the sub-Divisional Magistrate that there was emergency for the attachment of the property under dispute. Under section 146 (1) Cr. P. C. 1973, the Magistrate, at any time after making an order under sub-section (1) of sec. 145, attach the subject of dispute, 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 sec. 145 or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute. The attachment is to continue until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof, unless the Magistrate withdraws the attachment at any prior stage on his being satisfied that there is no longer any likelihood of a breach of the peace.

( 5 ) THE question whether the matter is of such emergency as to justify an attachment as one within the Magistrate s discretion and the exercise of such discretion will not be lightly be interfered with. The object of the provision of this section is to keep effective control over the subject of dispute so as to prevent the contesting parties from creating a breah of the peace. Therefore, actual taking of possession of the property attached is contemplated. The effect of the order of attachment is to place the property into custodia legis. Under the section, the possession of the court enures to the benefit of the person who is ultimately found by a competent court to be entitled to the property. The legal possession being in the true owner, the attachment does not operate as dispossession of the rightful owner.

( 6 ) IT is well settled that section 146 is a corollary to Sec. 145. The magistrate is empowered under section 146 (1) to attach the subject of dispute in three cases, namely (1) if it is a case of emergency; or (ii) if none of the parties was in possession; or (iii) if no decision is possible as to the possession. And the order of attachment remains in force until a competent ceurt decides the rights of the paries or until the magistrate, on being satisfied that there is no longer any likelihood of a breach of the