The Magistrate does not become functus officio upon dropping proceedings under Section 145(5) of the CrPC and has jurisdiction to pass incidental orders for winding up the proceedings and restoring possession of the attached property to the party from whom it was taken.

CHENNAKESAV REDDY, J.

( 1 ) THIS revision petition, which arises out of preventive action under Section 145 of Cr. P. C. , raises two questions of law of somewhat general interest and importance. 1. Whether the Magistrate becomes functus officio the moment he makes an order dropping the proceedings under S. 145 (5), Cr. P. C. and thereafter has no jurisdiction to pass any order relating to the disposal of the property ? 2. Whether a person who has unsuccessfully fought a criminal revision case before the Sessions Judge can maintain a revision petition before the High Court under Sections 397 and 399, Cr. P. C. ?

( 2 ) THE facts and circumstances giving rise to this case are neither complicated nor long drawn out; On the information laid by the Sub-Inspector of Police, Abid Road Hyderabad, that a dispute likely to cause breach of peace exists concerning the house bearing Municipal No. 5. 9. 15, Chapel Road, Hyderabad, the Executive Magistrate, Hyderabad, was satisfied that the said dispute was likely to cause a breach of peace, passed a preliminary order under S. 145 (1), Cr. P. C. on 10-12-1980 and issued notices to both the parties to make their appearance and put in the written statements of their defence in respect of their claim of actual possession of the property in dispute. The Magistrate also made an order of attachment on the same day and directed the Deputy Tahsildar to take possession of the house bearing No. 5. 9. 85 (Now No. 5. 9. 85/a/2 ). Accordingly, the Deputy Tahsildar took possession of the house on 11-12-1980 under a Panchanama.

( 3 ) BOTH the parties filed their written statements stating that there neither existed nor exists any cause for the apprehension of the breach of peace and so the proceedings may be dropped. Thereupon, the Magistrate called for a report from the Inspector of Police, Abid Road, who inspected the premises in dispute and reported that there was no apprehension of breach of peace. So the Magistrate cancelled the preliminary order under Section 145 (5), Cr. P. C. and directed the Deputy Tahsildar to hand over possession of the premises to the persons, M/s. Ashfaq Alam and Masood Alam, from whose possession the property had been taken into his custody under the preliminary order dated 11-12-1980. Against the said order, respondents of the B party filed a Revision Petition before the Metropolitan Sessions Judge, Hyderabad under S. 397 (1), Cr. P. C. The Sessions Judge went into the question as to which party was entitled to possession of the property in dispute, set aside the order of the Magistrate and directed the Tahsildar to re-deliver the property to the B party respondents. Now the A party respondent has preferred this revision petition.

( 4 ) THE learned counsel for the petitioner A party submits that the Sessions Judge was in error in going into the question as to who was entitled to the possession of the property in dispute after the proceedings were dropped under Section 145 (5), Cr. P. C. He argues that on the dropping of the proceedings under S. 145 (5), Cr. P. C. the position of the parties would be precisely the same as it were when the proceedings were started and the Magistrate has jurisdiction to restore to the parties status quo ante, and does not become functus officio.

( 5 ) MR. T. V. Sarma, appearing for the B party respondent counters this argument and submits that this petition is barred under Section 399 (3), Cr. P. C. and that in any case, according to him, the very foundation for any preventive action was absent in this case.

( 6 ) THE first question is : on dropping the proceedings under Section 145 (5), Cr. P. C. is the Magistrate functus officio and has no jurisdiction to pass any order relating to the disposal of the property attached by him under Section 146, Cr. P. C.

( 7 ) JUDICIAL opinion on the question is divided. However, the preponderance of judicial authority appears to be in favour of the view that after the cancellation of the preliminary order pass

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