- (1.) N. B. Asthana, J. On 24-5-1993 S. I. Krishan Nand of P. S. Baradari, Bareilly submitted a report to City Magistrate, Bareilly stating that there is dispute between Iqbal Masood Khan first party and Mehboob Zaman Khan second party regarding possession of the house detailed in the map attached to the report, that there is apprehension of breach of peace, that any serious law and order problem may arise at any time and, therefore, proceedings under Section 145, Cr. P. C. should be drawn between the parties. It is also stated that a separate report under Sections 107/116, Cr. P. C. is being submitted. This report is, dated 24-5- 1993. It appears that on 27-5-1993 the present ap plicant moved an application before the City Magistrate asserting her posses sion over the ihouse in question and praying that report from C. O. Kotwali be obtained or local enquiry under Section 148, Cr. P. O. may be ordered to be made to avoid future multiplicity of the proceedings. Upon this application the City Magistrate directed the Circle Officer, Kotwali to look into the matter, take necessary action and report. He also enclosed the report, dated 26-5-1993 submitted by C. O. Kotwali to him. The C. O. Kotwali sent his report, dated 30-5-1993 stating that the report for attaching the subject-matter of dispute under Section 146, Cr. P. C. has already been submitted. No action has been taken upon that report, So far the matter is serious. It may culminate in a serious law and order problem. He, also stated that the parties are giving different applications in order to stall the attachment and that the attachment be made and thereafter the disposal of the applications filed by the different parties be taken up.
(2.) UPON the report, dated 24-5-1993 of Sub-Inspector, Baradari the Magistrate passed a preliminary order on 31-5-1993 wit respect to the subject-matter of dispute. On the same day he passed an order of attachment under Section 146, Cr. P. C. It does not appear that any report was submitted by the Circle Officer or any action was taken upon the application filed by the appli cant. She has now come to this court with the prayer that the entire proceed ings in the case under Section 145, Cr. P. C. pending in the court of City Magistrate, Bareilly, including the preliminary order and the attachment order be quashed and the property be restored to the applicant, during the pendency of this application. The applicant has described herself a Shafkat Jahan Ara Begum or wife of Mehboob Zamen Khan. In the affidavit filed before the City Magis trate, Bareilly she has described herself as wife of Mehboob Zaman Khan. In the civil suit filed by her against Mangal Das and others also she has described herself as the wife of Mehboob Zaman Khan. It appears that there is some typing error. Name of the applicant's husband appears to be Mehboob Zaman Khan, who is opposite party No. 3 in the case and second party in proceedings under Section 145, Cr. P. C. It may also be noted that Iqbal Masood Khan who is first party in the case is defendant No. 7 in Civil Suit No. 294 of 85 filed by the applicant. In that suit she claimed declaration of her being the owner of the house in question and for possession after the ejectment by defendants Nos. 1 to 5 and for recovery of arrears of rent etc. The application before the City Magistrate was moved by her stating that the tenants and sub-tenants delivered possession to her of the house in question, that she is in peaceful possession thereof and, therefore, there is no justification for proceedings under Section 145, Cr. P. C. The suit is still pend ing. Nothing has been brought on record to indicate that in that suit any compromise was filed between the applicant and the defendants No. 1 to 5 of that suit.
(3.) IN proceedings under Section 145, Cr. P. C. the question of title of the right to hold possession has not to be decided. The only point to be determin ed is as to whether there is apprehension of breach of peace and which of the parties was in possession on the relevant date. Whether the applicant is the owner of the house in question cannot be the subject-matter of enquiry in pro ceedings under Section 145, Cr. P. C. The first point argued was that an order of attachment can be passed after making the under sub- section (1) of Section 145, Cr. P. C. In the instant case there is nothing in the order passed under Section 146 (1), Cr. P. C. to in dicate that the aforesaid order was passed after the order under Section 145 (1), Cr. P C. was passed. This argument is no doubt correct but I do not think that on this ground alone the order of attachment under Section 146 (1), Cr. P. C. can be quashed. Both the orders under Sections 145 (1) and 146 (1), Cr. P. C. could be passed one after the other. It is not necessary that there should be a time gap between the two orders. It may be that the Magistrate while passing the attachment order did not look into Section 146 (1), Cr. P. C. but that would not lead to the conclusion that the order passed under Section 146 (1), Cr. P. C. should be quashed on this ground alone when there is nothing on the record to indicate that apprehension of breach of peace had ceased to exist. The fact that opposite party No. I Iqbat Masood was made defendant in the Civil Suit filed by the applicant would go long way in showing that actually there is dispute between the parties not only regarding the ownership but also regarding the possession over the subject-matter of dispute.;