D.N. Roy, J. - (1.) THIS is an application in revision by Babu Khan in proceedings under Sec. 145, Cr. P. C. After hearing learned counsel for the parties and going through the record it appears that the learned Magistrate was completely ignorant of what is required of a Magistrate when he chooses to proceed under Section 145 of the Code.
(2.) BABU Khan initiated the proceedings under Section 145 against nine persons who are the opposite -parties, contending that a certain plot of land in village Rathgaon has been in possession for quite a long time and that when he started construction of the house over this plot the opposite -party tried forcibly to oust him from possession and the threat gave rise to cause a breach of the peace. That application was made on the 23rd of June, 1951 On that very date the learned Magistrate passed an order to the effect that : " S. O. to report". After the report of the S. O. was received the Magistrate passed the following order on the 12th of July, 1951: From the report of the police I find that there is dispute about possession of a house and that there is an apprehension of breach of peace. Owing to imminent danger of breach of peace the house has already been attached by the police. Let notice be issued to parties. After notices were received by the parties they filed their respective written statements. The matter drifted on before the Magistrate for nearly two years and finally an order was passed by him on the 16th of May, 1953, which was to the following effect: From the evidence on the record, therefore, I am of the opinion that the land in dispute and the Panchayat ghar are in the exclusive possession of the opposite -party, namely, the Panchayat and that the claim of Babu Khan has no substance in it, and that the Panchayat is entitled to retain possession till it is ousted by a due process of law. The Panchayat is in possession through the opposite -party and it is entitled to retain it till it is ousted by a competent court. I therefore dismiss the complaint of the first party and prohibit the party to abstain from interfering with the peaceful possession of the Panchayat. The attached property is released in favour of the Panchayat
(3.) IN the present case the Panchayat was not a party at all. If some of the opposite -parties were officer bearers of the Panchayat, it cannot be said that the Panchayat was the opposite -party and that the attachment could be released in favour of the Panchayat. Apart from that aspect of the matter, it appears that the police had no power to attach the property when in the preliminary order passed by the Magistrate under Sec. 145 of the Code of Magistrate did not direct the police to make the attachment. If there was an apprehension of breach of peace, the police could obtain the necessary directions from the Magistrate in regard to the attachment. Moreover, the provisions of Sec. 145, sub -clauses (4) and (6) of the Code of Criminal Procedure had to be strictly observed by the Magistrate so that the final order that was passed by him under Sec. 145 could be upheld. Clause (4) of Sec. 145 requires that the Magistrate after considering the written statement of claims and the evidence which the parties choose to produce has to come to a conclusion as to whether any and which of the parties was at the date of the preliminary order passed by him in such possession of the said subject of dispute. The proviso to sub -clause (4) says if it appears to the Magistrate that any party has within the course of two months of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession on such date. What the Magistrate found by his order dated the 16th of May, 1953, was that on that date the land in dispute and the Panchayatghar were in exclusive possession of the Panchayat. The Magistrate gave no finding on the question as to who was in possession on the relevant date mentioned in sub -clause (4) of Sec. 145. Sub -clause (6) of Sec. 145 requires that it the Magistrate decides that one of the parties was or should under the first proviso to sub -section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance of possession until such eviction, and may restore to possession the party forcibly and wrongfully dispossessed. Now in this particular case the village panchayat was not a party to the proceedings. Consequently under sub -clause (6) of Sec. 145 the Magistrate could not direct that the subject of dispute should be handed over to the panchayat.;