The Magistrate's jurisdiction to decide the question of possession continues even after the attachment under Section 146(1) Cr. P. C.

G. D. SRIVASTAVA, J.

( 1 ) THIS is an application under Section 482 Cr. P. C. arising out of proceedings under Section 145 Cr. P. C. initiated by Shyama Devi, opposite party No. 1, by means of an application dated 3-6-1975. A report was called for from the Station Officer concerned and after receipt of the report, the preliminary order was drawn up by the Magistrate on 5-8-1975 and the parties were directed to appear on 236-1975. On 7-6-75 Shyama Devi moved another application praying that, it being a case of emergency, the property in dispute should be attached and accepting this prayer, the Magistrate attached the property by his order dated 11-6-75. The petitioner challenged the legality of the proceedings pending before the Magistrate on two grounds. Firstly he alleged that there was no likelihood of breach of peace and his second point was that because the court had passed an order of attachment of the property in dispute under Section 146 (1) Cr. P. C. it had no further jurisdiction to inquire into the rights of the parties as to which party was entitled to possession thereof. The Magistrate overruled both these objections by his order dated 18-8-75. He held that a mere denial of apprehension was not sufficient and that in his opinion an apprehension did exist. The second objection was also disposed of by the Magistrate with the observation that his jurisdiction to inquire about possession continued even after the attachment. The petitioner went up in revision against this order and the same was dismissed by the IIIrd Additional Sessions Judge, Allahabad on 24-9-75. By moving this application under Section 482 Cr. P. C. Ram Adhin has challenged the legality of the proceedings under Section 145 Cr. P. C. mainly on the ground that after the attachment under Section 146 (1) Cr. P. C. the Magistrates jurisdiction came to an end. Regarding the existence or non-existence of apprehension of breach of peace, I may point out that the Magistrate, in his aforesaid order, held that, in his opinion, there was an apprehension. It appears that this finding of the Magistrate was not questioned before the learned Additional Sessions Judge, In my opinion also, it is the sole discretion of the Magistrate to decide whether any apprehension exists or not. It is, therefore, not necessary to dilate any further on this aspect of the matter.

( 2 ) COMING now to the main point which has been raised in this petition, it may be necessary to reproduce the relevant provision of law, namely, Section 146 (1) Cr. P. C. which runs as follow:

(1) If the Magistrate at any time after making the order under Sub-section (1) of Section 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 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 in dispute.

( 3 ) A perusal of this provision of law makes it clear that the Magistrate has been given a power to attach the subject of dispute in three cases:

(1) if he considers the case to be one of emergency, or (2) if he decides that none of the parties was then in such possession as ii referred to in Section 145, or

(3) if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute. After enumerating the three cases, the sub-section proceeds to state that the. Magistrate 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. The learned Counsel for the petitioner, th

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