H.N.Kapoor, J. - (1.) THIS revisior is directed against the order dated 8-7-1977 of the Section Judge, Mirzapur in Criminal Revision No. of 1977 by which he set aside the order date 28-10-1976, passed by Sub-Divisiona Magistrate Sada, Mirzapur, under Section 146 Cr. P. C. Proceeding under Section 145 CrPC started o the basis of an application made b the present application, Barkoo against opposite party Nankoo. The static officer submitted a report on 29-7-1976 to the effect that there was a apprehension of breach of peace over the land in suit. The learned Magistrate then passed a preliminary order on 7-8-1976 requiring both the parties to file their written statements. The present applicant who was the first party filed an affidavit on 22 8-1976. Two of his witnesses filed their affidavits on 22-9-1976 supporting his claim. The applicant filed another affidavit on 22-9-1976. An ex-parte order of attachment under Section 146 Cr. P. C. was then passed by the learned Magistrate on 28-10-1976. THIS order communicated that accord ing to the report of the police the opposite party had refused to accept notice and so the Magistrate proceeded ex-parte. Mention was made about the affidavits, documents and the papers filed by the first party. The learned Magistrate, however, did not record a finding that he was unable to decide as to who was in possession. He, however, gave a finding to the effect that he was satisfied that there was apprehension of the breach of peace and that for preventing breach of peace, it was necessary that the property be attached. He therefore, passed the impugned order of attachment under Sectional 46 Cr. P. C. which was to the effect that the property shall remain attached until the dispute was decided by a civil court, ft appears from the record that the opposite party filed an application on 4-11-1976 before the Magistrate for recalling the order dated 28-10-1976 stating that he had no knowledge about the proceedings and that no notice was served on him. According to him he got the knowledge of the proceedings when the police arrived on 2-11-1976 to attach the property. He filed an affidavit in support of his contention. The matter remained pending before the learned Magistrate when revision No. 10 of 1977 was filed before the Sessions Judge on 2-3-1977. THIS revision was decided on 8-7-1977. The present revision has been filed against that very order. Before the decision of the learned Sessions Judge in revision No. 18 of 1977, the application before the Magistrate for recalling his order was dismissed on 25-3-1977.
(2.) THE order of the learned Sessions Judge has been assailed on various grounds. THE first ground is that the order under Section 146 was an interlocutory order and no revision could lie under Section 397 sub- section (ii) Cr P.C. and as such learned Sessions Judge has acted beyond jurisdiction. I am unable to agree with this conten tion. Order under Section 146 Cr. P. C. is certainly a final order so far the Magistrate is concerned. After passing such order he has no right left to continue with the proceedings under Section 145 Cr. P. C. He can only make further enquiry for the limited purpose whether the apprehen sion of breach of peace still exists or not. If at any later stage he is satisfied that there was no longer apprehension of the breach of peace, he can drop the proceedings under Section 145 Cr. P. C. but for all other purposes the order is final. Now the Hon'ble the Supreme Court has held in the case of Amar Nath v. State of Haryana (1), that even the order summoning the accused on the basis of the complaint can be treated as a final order. Learned counsel for the applicant has next argued that it is the sole discretion of the Magistrate to pass an order of attachment in case of emergency and such an order cannot be interfered with unless it is perverse. It is significant that this order was not passed in the very beginning on the basis of police report. The police report was submitted on 29-7-1976 and preliminary order was passed on 7-8-1976. The order under Section 146 Cr. P. C. was passed on 28-10 1976. Obviously, the Magistrate himself did not consider it a case of such emergency, otherwise he would have passed the order soon after the police report was submitted. Even in his order he has only stated that in order to prevent the breach of peace, it was necessary to attach the property. He did not give a finding that he considered it a case of emergency. He also took notice of certain affidavits and papers filed in this case but he did not record any finding that he himself was unable to reach any conclusion about the possession. On the basis of the evidence on the record, the learned Sessions Judge even took the view that it was a case of joint possession and as such the proceedings under Section 145 Cr. P. C. will not lie. If it was correct the proceedings under Section 145 Cr. P. C. were incompetent from the very beginning. Learned counsel for the applicant has, however, argued that the observations of the learned Sessions Judge on the point of joint possession are not correct as the evidence with regard to the joint possession related back to the year 1969 and not to recent years. I may observe that the finding of the learned Sessions Judge with regard to the joint possession may not be considered to be final. But certainly the Magistrate has to take the evidence which may be adduced on this point into consideration for arriving at the conclusion whether the proceedings under Section 145 Cr. P. C. could lie or not. I make it clear that I myself am not deciding this point either way. Learned counsel for the appli cant has also argued that the learned Sessions Judge has taken into consideration some materials which were not on the record at the time when the revision was filed and that he should have confined himself to the order dated 28-10-1976 and not to subsequent order dated 25-3-1977 rejecting the application for recalling the order dated 28-10-1976. He has also argued that it is not known as to how much mind of the Magistrate was influenced by taking these subsequent materials into consideration. The learned Sessions Judge was called upon to record a finding on the point whether service had been effected on the opposite party or not. He has recorded a clear finding on this point after considering all the circumstances and the affidavits on the record. It was certainly open to the learned Sessions the Magistrate on 4-11-1976, much before 2-3-1977 when the revision was filed before the learned Sessions Judge. The entire record was before him when he decided the revision. It cannot therefore be said that he acted illegally in taking. In to considera tion the affidavits filed before the Magistrate without insisting on fresh affidavits having been filed before him. In any view of the matter in the interest of justice I am myself satisfied that proper opportunity have not been afforded to the opposite party and the ex-parte order under Section 146 Cr. P. C. was passed at his back. For this reason also I am not prepared to interfere with the order passed by the learned Sessions Judge. In the circumstances stated above it is fit and proper that the learned Magistrate should proceed afresh with the case according to law after giving opportunity to the oposite party of being heard.
(3.) IN the result the revision is dismissed. Stay order dated 15-7-1977 is vacated. The record shall be sent back to the lower court at a very early date within three weeks.;