A Magistrate does not become functus officio after a land is attached under Section 146(1) of the Code in the case of an emergency and has the power to continue with the proceeding under Section 145 of the Code.

Lahiri, J.:- Whether a proceeding under S. 145 of the Cr. P. C., 1973 (for brevity referred to as "the Code") comes to an end after an order of attachment is made under S. 146 (1) of the Code on the ground of emergency ?

2. This is the moot question posed and referred to this Bench along with a subsidiary question. The later is not of wide importance.

3. Mr. S. N. Medhi, the learned Counsel appearing on behalf of the petitioner has contended that once an attachment is made under S. 146 (1) of the Code on the ground of emergency a proceeding comes to an end. Counsel relies on the decisions reported in 1976 Cri LJ 1150 (Pat), Mahomed Muslehuddin v. Md. Sala-huddin; 1976 Cri LJ 1915 (Delhi), Hakim Singh v. Girwar Singh; 1977 Cri LJ 563 (Raj), Mansukh Ram v. State; and 1977 Assam LR 58, S. Kamayao v. A. C. Mamatuithei, and adopts the principles enunciated in these decisions as a part of his argument. The sole factor for arriving at the conclusion was plain and simple reading of S. 146 (1) of "the Code" along with the proviso. The learned Judges put special emphasis on the collocation of the words "until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof;" as contained in S. 146 (1) of "the Code" read with the proviso empowering such Magistrate to withdraw the attachment on his satisfaction as to the non-existence of likelihood of a breach of peace with regard to the subject of the dispute.

4. Under the Cr. P. C. Code, 1898 (since repealed) (for brevity referred as "the old Code") two classes of attachment were envisaged:- (1) attachment in case of emergency before an enquiry under S. 145(4), and (2) attachment after the said enquiry in case of doubt as to which party was in possession of the subject-matter of dispute, that is, after the completion of an enquiry under Section 145 (4) of "the old Code". It will be seen that under S. 145 of "the old Code" the first kind of attachment in case of emergency with the qualifying words "pending his own decision in the case" have been obliterated by "the Code". Therefore, under "the old Code" a Magistrate had power to attach the land in case of emergency either before the commencement of the enquiry under S. 145 (4) or after the conclusion thereof, subject to the conditions set forth above.

5. Under "the Code" it appears to us that a separate provision has been made empowering the Magistrate to. attach the subject-matter of the dispute and to appoint receiver. We set out the provision contained in S. 146 (1) of "the Code" along with the proviso:-

146. Power to attach subject of dispute and to appoint receiver.- (1) If the Magistrate at any time after making the order under sub-section (1) of S. 145 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 in S. 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, 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 a breach of the peace with regard to the subject of dispute."

(underscored by us)

6. Attachment can be made under S. 146 only in cases of (1) emergency, (2) if the Magistrate decides that none of the parties was then in such possession as is referred to in S. 145 or (3) he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute. It becomes crystal clear that the conditions precedent for attachment as stated under Items 2 and 3 above must be after determination of enquiry under S. 145 (4) of "the Code", The words and expressions underlined, namely, "decides", "unable to satisfy", "then in such possession as is referred to in S. 1