IMPORTANT POINT
When a civil litigation is pending for the property wherein the question of possession is involved, initiation of a parallel criminal proceeding under section 45, Criminal Procedure Code, would not be justified.

JUDGMENT

G.R. Luthra, J.-The present petition under section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) is for quashing a preliminary order under section 145 and an order attaching, under section 146 of the Code, a property No. 5229-31, Sarai Hafiz Banna, Gandhi Market, Sadar Bazar, Delhi. These orders were passed on 9th August 1985 by Shri G S. Chaturvedi, SDM, Kotwali, Delhi.

2. The impugned orders were passed on an application dated 8th August 1985 of one Rakesh Nanda, who claims to be in possession of the property in question as a tenant of the petitioner. It was alleged in that application that there was dispute about the possession of the aforesaid property on account of which there was possibility of breach of peace and, therefore, the proceedings under sections 145 and 146 of the Code be taken. Vide order under section 145 of the Code, the learned S.D.M. called upon the parties i.e. the present petitioner and Rakesh Nanda to appear before him on September 3, 1985 and to put in their respective written submissions, documents and list of witnesses, if any, in support of their respective claims regarding the possession of the property in dispute (described already). Simultaneously, the learned S.D.M. also passed an order under section 146 of the Code attaching the property by making the following remarks:

"Whereas I have heard counsel for first party at length and I have decided that I am unable to satisfy myself as to which of the said parties is in possession of the suit property."

3. It is contended by the petitioner that the aforesaid orders are illegal, that the property could not be attached and that, therefore, the same be set aside. The petitioner has also stated the history as to how the disputes started and went on but I am not mentioning the entire history as it is not relevant for deciding this petition. However, only one thing is being mentioned that a suit was brought by Rakesh Nanda in a civil court which is still pending and in that suit also a temporary injunction is in force to the effect that status quo should be maintained.

4. First of all I take up the question of legality of the order passed under section 146 of the Code. The relevant portion of section 146 is sub-section (1) which reads as under;

"146. Power to attach subject of dispute and to appoint receiver.--( I) If the Magistrate at any time after making the order under sub-section (I) of section 145 considered 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 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, he may attach 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."

5. It is clear from the aforesaid provision that attachment of a property can be done in any of the following three situations:

(i)  If there is emergency to attach the property.

(ii)  If the Magistrate decides that none of the parties was in possession on the date of the preliminary order under section 145 of the Code.

(iii)  If the Magistrate is unable to satisfy himself as to which of the parties was in possession of the subject of the dispute on the date of the preliminary order.

6. It is apparent from the language of subsection (1) of section 146 of the Code that as far as the first situation is concerned i.e. in case of emergency, attachment can be ordered at once even without going info the merits of the respective claims regarding possession of the parties. But it is equally clear that the remaining two situations will arise only after the parties have been given opportunity of leading evidence a