M.Wahafuddin, J. - (1.) The applicants have come forward with a prayer that the preliminary order dated 25-1-1983 as well as the other order of the same date under section 146 (1), Criminal Procedure Code may both be quashed and the proceedings under section 145 Criminal Procedure Code as well be also quashed.
(2.) Reliance in support of the arguments are placed upon the cases of Sardari Lal v. State of Punjab, Mmrit Singh v. Gyan Dev Sharma and Sri Chand v. Dhundhi Ram. Law has to be applied to the facts of the case. I have perused the impugned orders. The Magistrate has stated that after perusal of the application and affidavit he is satisfied that there is a dispute between the parties centering round the possession of immovable property involved and that breach of peace may take place at any moment. He has, thus, mentioned that the materials as such, upon which he was satisfied. In his order under section 146 Criminal Procedure Code, he has stated that he has started a proceedings under section 145 Criminal Procedure Code and a breach of peace may take place any moment centering round the dispute over the possession of immoveable property and the situation is grave and, as, he is not able to decide the case forthwith attachment under section 146 Criminal Procedure Code is directed. I may mention that as is laid down in the Criminal Procedure Code itself the Magistrate can have the subjective satisfaction on the application and affidavit of any party or police report. The matter of satisfaction is purely subjective one. What the law requires is that in the preliminary order the ingredients which may confer jurisdiction should necessary be stated, namely, that the satisfaction regarding apprehension of breach of peace centering round the possession of immoveable property should be recorded. That the magistrate has done.
(3.) It has been urged that in any case the emergency attachment is bad and attachment should not have been made. As regards that direction the Magistrate has recorded in the order itself that a breach of peace may take place any moment and there is a gravity of the situation. When that is the position, it cannot be said that the Magistrate has not exercised his mind and has not given reasons for the orders passed. The report of the police was also read before me. The police stated that the application is in possession and further stated that there is a serious apprehension of breach of peace which may take place any moment. So far as the former part of the report was concerned, it is not the business of the police to decide who is in possession. That matter has to be decided in accordance with the express provisions of law itself, which are contained in Section 145;