P.L. Bhargava, J. - (1.) AS the entire procedure adopted by the Magistrate in initiating these proceedings, under Section 145 of the Code of Criminal procedure, was illegal, this reference must be accepted. Ram Prasad and certain other persons were anxious to obtain some land, which was' in possession of the Zamindars. They made an application for that purpose to the Sub -Divisional Magistrate of Moradabad. While that application was still pending, they made another application to the Magistrate for proceedings being taken under Section 145 of the Code. The Magistrate sent the application to the Station Officer of the police station concerned for a report: and he also directed that, if, in the opinion of the Station Officer, there was any apprehension of breach of the peace, the property in dispute may be attached. The Station Officer submitted a report giving the facts and, towards the close of the report, he also stated that, as there was a possibility of a dispute, the land had been attached, There was no mention in the report that there existed any dispute likely to cause a breach of the peace. The Magistrate then made an attempt to bring about a settlement between the p; and when that attempt failed, he summoned the parties and asked them to produce their evidence, Alter recording the evidence he declared that Ram Prasad and other were in possession of the land in dispute and that they were entitled to possession thereof until evicted there from in due course of law. Against this order a revision was filed in the court of the Session Judge of Moradabad, who was of the opinion that the procedure Adopted by the Magistrate was illegal. Accordingly, he made this reference recommending that, the order passed by the Magistrate be set aside.
(2.) IN the first place, the Magistrate acted illegally in directing the police to attach the property if there was in his opinion any apprehension of breach of the peace. In such cases, the law allows the Magistrate if he "considers the case one of emergency" to attach the subject of dispute; but no attachment can be made If a police officer be of the opinions that there is any apprehension of breach of the peace. The Magistrate had no authority to delegate his power to make an order of attachment under the second proviso to sub -Section (4) of Section 145 of the Code of Criminal procedure to the Station Officer. In the next place, he acted without jurisdiction when he initiated the proceedings on a police report which did not make any reference to the existence of any dispute likely to cause breach of the peace without applying his mind at all. It is settled law that a Magistrate can assume jurisdiction to act under Sections 145 of the Code of Criminal procedure, if and when there is a dispute, and the dispute Is such as is likely to cause a breach of the peace.
(3.) I , therefore, accept this reference, quash the proceedings before the Magistrate and set aside the order' passed by him on the 31st January 1950, The attached property shall be released forthwith.;