- (1.) K. Narayan, J. List has been revised. None has appeared on behalf of the applicant. Counsel is present for the opposite parities. I have gone through the judgment of lower court.
(2.) THIS revision is directed against the order of the Additional City Magistrate, Kanpur City, Kanpur dated 23. 12. 1981 directing the release of the property attached by him under Section 146 Cr. P. C. in favour of the opposite party, Laxmi Prakash. A perusal of the order of the Magistrate shows that the proceedings under Section 145 Cr. P. C. had commenced on some police report dated 1. 12. 1980. He made a prelimi nary order directing both the parties i. e. Bore Prasad and Laxmi Prakash to file their respective claims if the judgment is a chronological order, evidence was recorded and after that, on 25. 9. 1981, one Ram Swarup the father of Sri Laxmi Prakash made an application contending that there was an apprehension of breach of peace and the property be attached. Accordingly on 7. 11. 1981 the property was attached and given in the supurdgi of one Abdul Rashid son of Abdul Rahim. As already stated above, by the impugned order the Magistrate has directed release of the property in favour of Laxmi Prakash. Aggrieved by this order Sri Bore Prasad has come up in revision before this Court. By an order dated 7. 1. 82, the property was directed by this Court to continue under attachment.
(3.) SINCE nobody has appeared in this revision on behalf of the applicant, it has to be disposed of by applying the proper law. After the Code of Criminal Procedure, 1973, the position of law in respect of proceedings concerning, apprehension of breach of peace, relating to immovable property, had under gone a drastic change. The procedure is now in two parts i. e. Sections 145 and 146 separately. No attachment is ordinarily to be directed under Section 145 Cr. P. C. and the authority to make an interim attachment, has been given a different shape under Section 146 Cr. P. C. Under this Section, 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. It is quite clear from the above section that the Magistrate can direct attachment of the property only when he considers the case to be one of emergency or he has already come to the conclusion that none of the parties was in possession or unable to decide the question of possession for himself. Once any of these positions arises, the Magistrate may direct attachment of the property in dispute but that has to continue until a com petent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. After making the order of attachment, the Magistrate can not decide the question of possession and has to wait till the issue is decided by a competent court. It may be that he can vacate the attachment, if in his opinion, the apprehension of breach of peace ceases to exist but he can not decide that right to possess.;