ORDER :- This is a reference by the learned Sessions Judge of Dehra Dun recommending that the order of the trial Court attaching the property in dispute under S.146, Criminal P.C. be set aside. It would appear that in Dhamanwala Bazar, situate in the district of Dehra Dun, there is a shop and above the shop there is a Chaubara with a balcony belonging to Colonel Kunwar Shamsher Bahadur Singh. One Sheo Prasad Goel, a student of the D.A.V. College claimed to be the tenant of the said Chaubara and balcony. He moved an application under S.145, Criminal P.C alleging that he had allowed one Shiam Sunder Lal Jain, a hardware merchant, to carry on his business in the said Chaubara and balcony. He further alleged that subsequently he had withdrawn his permission and Shiam Sunder Lal forcibly dispossessed him from his Chaubara and there was a danger of a breach of the peace in respect of it. The second party, Shiam Sunder Lal, put in a written statement alleging that in fact he himself was a tenant of the property in dispute and had allowed Sheo Prasad Goel to use the balcony for the purposes of study so long as it did not interfere with his professional work.

After the filing of the written statements by the parties, the learned Magistrate recorded the statements of ten witnesses on behalf of Sheo Prasad after which the applicant closed his case. The evidence of Shiam Sunder Lal was then begun. After recording his examination-in-chief and before his cross-examination started, the learned Magistrate proceeded to pass the following order under S.146, Criminal P.C.

"Each of the parties claims to be in possession and alleges that the other was allowed temporary use of the room. Under the circumstances each admits the other to have been in possession and the modes of possession being incompatible, it follows that no satisfactory conclusion as to possession can be reached.

I, therefore, direct under S.146, Criminal P.C. that the property remain attached till either party obtains a decision in its favour from the civil Court."

2. The second party, Shiam Sunder Lal, being aggrieved with the aforesaid order went up in revision before the learned Sessions Judge on the ground that the provisions of S.145, sub-cl. (4), Criminal P.C., were not complied with and the order of attachment under S.146 was, therefore, illegal and invalid in law. The learned Sessions Judge agreed with the said contention and made this reference recommending that the order in question be set aside.

3. Having gone through the order of reference and the explanation submitted by the learned Magistrate, I am of opinion that this reference must be accepted. Under S.145, sub-cl. (1), Criminal P.C., once a Magistrate is satisfied that a dispute likely to cause a breach of the peace exists, he should make an order in writing requiring the parties concerned in such dispute to attend his Court in person or by pleader within a time to be fixed by such Magistrate and to put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute. After the written statements have been filed, then under sub-cl. (4) of the same section, the Magistrate is required without reference to the merits of the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary and, if possible decide whether any and which of the parties was at the date of the order before mentioned in possession of the said subject.

Thus it is evident that the Criminal Procedure Code has prescribed a definite and a comprehensive procedure to enable the Magistrate to come to a conclusion on the question of possession which is the question in issue in proceedings under S.145, Criminal P.C. Unless the entire procedure has been gone through it is not possibl

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