A Magistrate cannot pass an order of attachment under Section 146(1) of the Criminal Procedure Code without first drawing up a preliminary order under Section 145(1) and without being satisfied that there is an emergency warranting the passing of such an order.

( 1 ) THIS petition arises in the following circumstances: on the report of S. H, O. Kotwali, Paizabad dated 24th April, 1974. proceedings under Section 145, Criminal P. C. were initiated and Sri. S. R. Pandey, City Magistrate, Faizabad passed an order on the same day purporting to be under Sections 145 and 146 (1) of the Criminal P. C. Thereafter an application was filed by Banney alias Nisar Ahmad alleging that the attachment of the property was made against the provisions of the Criminal P. C. hence the order of attachment be withdrawn. The learned City Magistrate after hearing the parties made the following order. I have gone through the file and heard the learned Counsel for the parties. The attachment of the property was made under Section 146 (1) of Cr. P. C. which came into force on the 1st April, 1974. As such the provisions of old Cr. P. C. are not applicable in this case. Under Section 146 of new Cr. P. C. Magistrate may attach the subject of dispute until a competent court had determined the rights of the parties thereto with regard to the person entitled to the possession thereof. This Court has got no power to decide the dispute of immoveable properly under Section 145, Cr. P. C. Parties are directed to seek remedy in respect of their rights and possession from a competent Civil Court. The properly in dispute will remain in possession of receiver till the decision of the competent Civil Court. The supurdgar appointed by S. O. will act as receiver under Section 146 (2) of Cr. P. C.

( 2 ) BANNEY then filed a revision petition in the court of the Sessions Judge which was rejected by the learned Second Additional Sessions Judge, Faizabad by his order dated 26th June, 1976. The petitioner has by the instant petition asked for the quashing of both the orders. as well as the order of attachment. The learned Counsel for the petitioner submitted that the order of attachment dated 24th April, 1974, followed by the order dated 27th April, 1976 passed by the city Magistrate were not in conformity with Sections 145 (1) and 146 inasmuch as the learned magistrate had not applied his mind in coming to the conclusion that there was an apprehension of breach of the peace or that there was any emergency to pass an attachment order.

( 3 ) IN order to appreciate the contention, it would be appropriate to quote here the material portion of the order dated 24th April. 1974, passed by the City Magistrate; whereas I am satisfied from the report of S. H. O. Kotwali, Faizabad dated 24-4-1974, that there is an apprehension of the breach of the peace between the following parties regarding digging of an old well on a land lying in front of the house of First Party Banne alias Nisar Ahmad, boundary of which is given below to meet the needs of water. I, therefore hereby order that the land of the boundary given below be attached and given in supurdagi of some reliable person not interested in the parties. Parties be directed to appear in the court on 30-4-1974 at 10 A. M. to file their written-statements, affidavits and papers to show their possession. The learned Magistrate in the first para of the said order stated that from the report of the SHO kotwali it appears that there was an apprehension of breach of the peace between the parties regarding the digging of an old well on a land lying in front of the house of the first party banney alias Nisar Ahmad to meet the needs of water. He then proceeded to attach the land and ordered that the same be given in the custody of some reliable person not interested in the parties. Then he proceeded to direct the parties to appear in the court on 30th April, 1974, to file their written-statements, affidavits and papers to show their possession. This order purports to be a composite order under Sections 145 (1) and 146 (1), Criminal P. C. The provisions of both the aforesaid sections came up for construction before the Supreme Court in Mathura Lal v. Bhan-war Lal, MANU/sc/0173/1979. , AI