A Magistrate cannot drop a proceeding under Section 145, Cr. P. C., and evade his responsibility to decide on possession and direct the disputed property to be kept in charge of a third party. The Magistrate must make a serious effort to determine possession based on the materials on record and follow the provisions of Section 145(6) or Section 146, Cr. P. C., as appropriate.

R. L. NARASIMHAM, C. J.

( 1 ) THIS is a petition in revision against an order passed by Sri B. Misra, First Class magistrate of Balasore, dropping a proceeding under Section 145, Cr. P. C. and directing the management of the disputed properties by a Receiver till the rights of the parties are decided by a competent Civil Court.

( 2 ) THE proceedings were started in respect of 32 acres of land on the 20th february 1957 on the report of the local Police to the effect that there was apprehensions of breach of peace. The disputed properties were also attached and kept under the management of one Chintamoni Mohanty pending the disposal of the proceeding. The learned Magistrate, after scrutinising the affidavits filed by both parties and hearing them passed an order on the 9th September 1957 to the following effect : "from the documents filed by the parties it is not possible to come to any definite conclusion about possession of the suit lands by either of the parties. " then he discussed the contention raised by the pleader for the second party to the effect that the proceeding was not maintainable as there were several distinct disputes in respect of different portions of the land which had been mixed up in one proceeding and that there ought to have been separate proceedings in respect of each of those disputes. He therefore dropped the proceeding under Sub-section (5) of the Section 145 Cr. P. C. and passed the following order: "the Receiver Chintamoni Mohanty should credit the sale proceeds of paddy into the Treasury immediately if not done. He should arrange cultivation of the suit land by a third party with the knowledge of both parties till the rights of the parties are decided by a competent Court. "

( 3 ) THE order of the learned Magistrate cannot be purported. He has nowhere stated that there was a further apprehension of breach of peace, in which case alone he would be justified in dropping the proceeding. On the other hand, his order shows that on a previous occasion also some portion of the disputed property formed the subject matter of another proceeding under Section 145 Cr. P. C. which was dropped by the Magistrate. This did not prevent breach of peace, but on the contrary a Criminal case under section 379 I. P. C. was started against some of the members of the 2nd party. There was again apprehension of breach of peace and on the Police report the present proceeding was initiated by the Sub-divisional Magistrate. Thus, when past experience has clearly shown that the dropping of proceeding under Section 145 Cr. P. C. has not avoided breach of peace and the Sub-divisional Magistrate was compelled to start afresh proceeding under that section, including therein a larger area than was included in the earlier proceeding, the apprehension that breach of peace continues to exist is very obvious. The Magistrate therefore thought that he could adopt a short cut by dropping the proceeding but keeping the property in charge of the Receiver, namely Chintamoni mohanti, until the rights of the parties were decided by the Civil Court. In effect he has passed an order under Section 146 Cr. P. C. without expressly saying so and without following the procedure prescribed by law.

( 4 ) AS pointed out by this Court in (Raidyanath Mohanty v. Kunja Behari Das 22 Cut lt 435 and in Dasa Mahanty v. Gadadhar Samal 23 Cut LT 37 : (AIR 1957 Orissa 92), it is always open to a Magistrate after dropping a proceeding under Section 145 Cr. P. C. to pass ancillary orders regarding the custody of the attached property and, if it is possible to determine the status quo ante, to restore the property to the party from whose possession it was taken. But such an order must, in reality, be ancillary, i. e. in the nature of a winding up order. The aforesaid decisions of this Court were based on Jam Bhambbo Khan v. Makhdum Muhammad Hassan, AIR 1942 Sind 117 raj Deo Singh v. Emperor AIR 1948 All 425 and Velur Devastlianam v. Sambandmurthi Nainar, AIR 1952