B. Dayal, J. - (1.) THIS is a reference by the Sessions Judge of Varanasi in Cr. Revision No. 13 of 1966. A learned single Judge of this Court has referred it to a Division Bench as the question of law was rather important. The facts of the case, which are relevant for purposes of this case, are as follows : On the report of one Ram Surat Singh, the revisionist, proceedings which gave rise to this revision, started. Ram Surat Singh was appointed Supurdar in a case Under Section 145 Code of Criminal Procedure by an order of the Sub -Divisional Magistrate, Varanasi. While the property was under attachment Mangal Singh and his three sons Brahmadeo Singh, Rajendra Singh and Amarnath alias Surendra Singh interfered with the possession of the Supurdar Ram Surat Singh. Hence Ram Surat Singh made a report to the police charging the Applicants Under Section 447 IPC for criminal trespass. The police after investigation filed the challan in court. The accused persons took the defence that the case did not fall Under Section 447 IPC but it amounted to an offence Under Section 188 IPC. The prosecution could not, therefore, proceed unless a complaint had been made Under Section 195 Code of Criminal Procedure by the court ' before which the proceedings Under Section 145 Code of Criminal Procedure were pending. This contention appealed to the learned Magistrate and since no proper complaint Under Section 195 Code of Criminal Procedure had been made, he discharged the Applicants. A revision was filed against that order and the learned Sessions Judge was of the opinion that the case did not fall Under Section 188 IPC and the order of the Magistrate was, therefore, liable to beset aside. The reference which was heard by the learned single Judge is before us for disposal.
(2.) THE sole point for consideration is whether an offence Under Section 188 IPC has been committed in the present case. If it has not been so committed, there would be no question of a complaint being made by the court Under Section 195 Code of Criminal Procedure and therefore, there would be no defect in proceeding with the prosecution Under Section 447 IPC. We may note here that the Magistrate has not yet recorded evidence or gone into the matter on facts. In order to decide this point, it is necessary to take into consideration the provisions of Section 188 IPC and Section 145 Code of Criminal Procedure. The relevant part of Section 188 IPC is as follows: Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act...disobeys such direction. Several ingredients are necessary to be fulfilled before this section becomes applicable (i) a person must know that an order has been promulgated, (ii) that the order has been promulgated by a public servant, (iii) that the public servant must be lawfully empowered to promulgate such order and (iv) that he is directed by such order to abstain from certain act. In the present case, we are concerned with the last condition. The question for consideration is whether an order of attachment Under Section 145 Code of Criminal Procedure without taking further steps amounts to an order directing a person to abstain from certain act. Section 145 Code of Criminal Procedure has several sub -sections. By Sub -section (i) certain classes of Magistrates have been empowered on receiving information about the likely breach of the peace in respect of an immoveable property to direct the parties concerned within a time to be fixed by the Magistrate to put in written statements of their respective claims. By Sub -section (2) the words "land or water" have been explained. Sub -section (3) thereof provides for service of such notices. Sub -section (4) gives power to decide without going into the merits with regard to the rights of parties, on a perusal of the evidence before it as to which of the parties was in possession of the property at the relevant date. There are three provisos to Sub -section (4) of Section 145 Code of Criminal Procedure. The third proviso, which is relevant, runs as follows: Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section. By this proviso, the Magistrate is authorised to attach any property. The Code of Criminal Procedure does not define the word "attachment" nor does it provide any specific procedure how the attachment is to be made. But it is obvious that it means taking possession of the property in the custody of the court and the Magistrate after taking such property into his custody may hand over the actual custody to any other person who is called the Supurdar. Sub -section (5) then authorises the parties concerned to make an application for the cancellation of the orders passed. Sub -section (6) authorises the Magistrate after finding out as to the person who was in actual possession of the property on the relevant date to issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and also "forbidding all disturbance of such possession until such eviction" and when proceedings under the proviso to Sub -section (4) have been taken, to restore possession to the party forcibly or wrongfully dispossessed. Sub -section (6), therefore, contemplates a clear order "forbidding all disturbance of such possession". The other sub -sections are not relevant and may not be considered. It will thus be seen that by mere attachment no order is issued to any party not to interfere with the possession. All that happens is that the property is taken possession of by an order of the Magistrate by the police and handed over to the Supurdar. Thus the Supurdar comes into lawful possession of the property and if his possession is disturbed he has all the legal remedies of a person in lawful possession to prosecute the trespasser under such of the provisions of law, as any other person in lawful possession of the property may be authorised to do. But in order to apply Section 188 IPC it is necessary that there must be an order directing a certain person to abstain from doing certain act. At the stage of mere attachment no such order is passed by the magistrate. Such an order is, however, passed when an order under Sub -section (6) of Section 145 Code of Criminal Procedure is issued. In the present case no order under Sub -section (6) of Section 145 Code of Criminal Procedure had been passed when the property was taken forcible possession of by the accused and Ram Surat Singh was perfectly entitled to make a complaint Under Section 447 IPC.
(3.) LEARNED Counsel appearing for the Supurdar Ram Surat Singh relied upon the case of Chattar Singh v. State, 1956 AWR 393. The learned single Judge of this Court has taken the view that no order as contemplated by Section 188 IPC is passed by merely attaching the property. We respectfully agree with this view. A contrary view appears to have been taken by a learned single Judge of this Court in Ram Samujh and Ors. v. State, 1967 AWR 151. We are unable to agree with the view taken in this case. The earlier case Chattar Singh was not cited.;