M.Wahajuddin - (1.) THE present petition has been preferred with a prayer for quashing the proceeding under Section 145 CrPC in case No. 7/11 of 1984 and also the order dated 19-4-1984 of the Magistrate attaching the property under Section 146 (1) CrPC. Curiously enough while the matter also went in revision directed against the order under, Section 146 (1) CrPC there is no prayer concerning the judgment of the revisional court though the revision was dismissed. THEre is no prayer for quashing the order in revision. It may be also mentioned that against the preliminary order also there was a revision and a certified copy of the judgment and order of the revisional Court dated 5-9-1984 is also on record and there is no prayer for quashing the same. I may first consider whether the main proceeding under Section 145 CrPC can be quashed. This prayer was made in the petition. THE arguments were, however confined to the merits of the later order under Section 1416 (1) CrPC. THE preliminary order passed by the Magistrate is dated 8-2-1984, Annexure 5. A perusal of the same would show that the Magistrate recorded his satisfaction regarding apprehension of breach of peace, centering round a dispute over possession of the immovable property involved. THE material on which this satisfaction was based also referred to in that order. THE Magistrate has stated that he is satisfied as aforesaid on the basis of the Police Report. THE police report is also on record, Annexure 4. It would be found that the police did report that there is great tension between respective parties on the dispute concerning property and there is an apprehension of reach of peace and a proceeding under Section 145 CrPC is requisite to prevent such breach. It is well settled law that the satisfaction is subjective of the Magistrate. It can be based on any materials. THE police report was there and the Magistrate has also referred to the same in his preliminary order and when that is the position no interference with such order is open in exercise of inherent powers and the course open to the parties is to put their respective claims by filing written statements and merits have to be looked into under the provisions of Section 145 (4) CrPC.
(2.) ARGUMENTS advanced by the counsel for the applicant are that the order under Section 146 (1) passed subsequently is bad. Reliance is placed upon the Division Bench case in Bansi v. Hari Singh, AIR 1956 Allahabad 297 as well as two other pronouncements, one of Bombay High Court reported in 1978 CrLJ 1492 and one of Rajasthan reported in 1974 CrLJ 726 and it is urged that in the judgment, also including an order, under Section 146 (1) CrPC the Magistrate has to state reasons for his orders. Next point urged is that the police report also stated that the present applicant is in possession and it is the other side who is trying to take law in his hand and caused breach of peace and it is on account of other parties action that there is apprehension of breach of peace. It is submitted in such situation opposite party no. 2 could not take any advantage of the police report nor such police report will help it. As regards the latter submission actually the police report is called for to satisfy whether any apprehension of breach of peace exists and neither police can decide who is in possession nor it has the authority to do so. Once the preliminary order is passed it is the Magistrate and the Magistrate alone who will be competent to determine under Section 145 (4) CrPC on evidence led before that court as to which party is in possession on the date of preliminary order and two months prior to it. At the same time so far as the police report is concerned it will always be relevant as a material for satisfaction whether any apprehension of breach of peace exists. It was next argued that after the preliminary order there was no additional material except an application moved by the opposite party for emergency attachment and when the Magistrate did not direct any emergency attachment while passing the preliminary order simultaneously or immediately thereafter it should not do so later on the application of opposite party when the present applicant was opposing. I am unable to accept such argument. Emergency attachment can be made at any stage subsequent to the preliminary order and there is no time limit. The application will serve as additional material in the sense that the opposite party again brought to the notice of the Court that there is an emergency situation so he should pass order one way or the other. If a prayer is made for emergency attachment under Section 146 (1) CrPC the Magistrate has to pass an order whether allowing or rejecting the application. It is noteworthy that a Division Bench of this Court has resolved much of the controversy in the matter. It was held in the case of Indra Deo Pandey v. Smt.Bhagwati Devi, 1981 AWC 314 also relying upon certain observations in Supreme Court cases that while making an order under Section 146 for attachment the Magistrate is not required to make any inquiries or to adjudicate the right of any person to remain in possession of the property in dispute or to adjudicate of any other type. This observation will completely repeal the arguments of the applicant's counsel that he is in possession and the Magistrate should have taken that into consideration. In fact this will also amount to putting card before the [horse. The matter of possession is to be determined only at the stage of Section 1145 (4) CrPC. It was also held in the very case that any interference under Section 482 CrPC would not be made unless it is manifest that the Magistrate related with malafide. That again is not the position. It was argued that the order passed by the Magistrate is not a legal order in the sense that it does not give reasons. That order is Annexure 7 and I have perused it. I cannot say that the order is arbitrary without giving any reasons. The Magistrate has expressly stated that he has gone through the file. He has expressly stated that he was satisfied that there is immediate apprehension of breach of peace. He has also stated that it is a case of emergency. In fact, instead of serving the ends of the justice it will defeat the cause of justice if it is prescribed as to in which length the Magistrate should pass his orders, what should be phraseology so forth and so on. The court should be satisfied simply on two points, firstly, whether the Magistrate exercised its mind and secondly whether the order is arbitrary or otherwise. So far as these two points are concerned, from the order it is manifest that the Magistrate has exercised his mind and has passed the order on satisfaction that there is apprehension of breach of peace. (sic) there was no later police report except earlier one but there is no bar to looking into that report as well regarding strained and surcharged situation and when in the: application emergency situation was pleaded, the Magistrate could accept such allegation as to pass order under Section 146 (1) CrPC. I may also mention that in the case of Surya Narain Tiwari v. Chandra Shekhar Pandey, 1984 ACC 274 it was held that once any preliminary order has been passed the Magistrate has complete jurisdiction to pass any order under Section 146 (1) at any subsequent stage. In this case the aforesaid Division Bench case of Indra Deo (Supra) has been followed besides some other cases. There is another pronouncement of this Court, namely, Radhey Shyam v. Smai Deen, 1984 ACrR 129 Division Bench laying down the same proposition of law that the Magistrate can pass attachment order at any stage after preliminary order. In this case it was held that Section 146 CrPC cannot be separated from Section 145 CrPC. They have to be read conjunctively. When that is the position a police report can well be read notwithstanding that this report was obtained while initiating proceeding under Section 145 CrPC. Needless to multiply rulings on the point that an attachment under Section 146 (1) CrPC can be made without any inquiry and unless malafide any interference will not be made. Considering the view that I have taken this application under Section 482 CrPC has no force and it is dismissed. The stay order is also vacated. Application dismissed.;