M. M. Gupta, J. - (1.) THIS reference has been made by brother K. C. Agarwal, J. before a larger bench. The question referred is as below : "Whether the property which has been attached under sub-Sec. (1) of Sec. 146 CrPC can be released only after the rights of the parties have been determined by a competent court and that the Magistrate has no power to proceed further u/Sec. 145 CrPC excepting that he may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of the breach of the peace in regard to subject of the dispute".
(2.) IN the instant case a preliminary order was passed by the Magistrate u/Sec. 145 CrPC on 5th June, 1975, as he was satisfied that there was a dispute with regard to plot no. 31/1 and that there was an apprehension of the breach of the peace. By the same order the Magistrate was satisfied that it was a case of emergency and directed the attachment of the plot. The parties were also required to put in their written statements and adduce evidence in respect of their respective claims. On 18th July, 1975 the Sub Divisional Magistrate after perusing the papers relating to the attachment of the property passed the order that the property has been attached u/Sec. 146 (1) and the parties were directed to get their rights decided through a competent court. The property was to remain under attachment till then. A revision was filed before the Sessions Judge. The Sessions Judge, however, set aside the order and sent back the case to the Magistrate to proceed in accordance with Sec. 145 and to decide the case of possession on merits. The point for decision that arose was whether after the attachment u/Sec. 146 (1) was made the Magistrate becomes functus officio to proceed further u/Sec. 145 CrPC till the parties get their rights adjudicated by a competent court and thereafter to decide the proceedings initiated u/Sec. 146 CrPC in accordance with the decision given by the competent court. Brother K. C. Agarwal, J. disagreed with the view taken by brother Kapoor, J. in Chandi Prasad v. Om Prakash Kanodia, 1975 AWC 558. Kapoor, J. was of the view that the Magistrate had to stay the proceedings after attachment and to wait for a decision of the competent court for making a final order u/Sec. 146. It may also be mentiond here that Honourable G. D. Srivastava, J. had taken the view in Ram Adhin v. Shyam Devi, 1977 AWC 33 which is in consonance with the view now taken by K. C. Agarwal J. while making the reference to the larger Bench.
(3.) HOWEVER, a Division Bench of our High Court in Sohan Lal Burman v. State of U. P., 1977 AWC 210 took the view that the case decided by G. D Srivastava, J. reported in 1977 AWC 33 (supra) did not lay down the correct law. Perhaps, if the view taken in 1977 AWC 210 was brought to the notice of K. C. Agarwal, J. the necessity for reference would not have arisen. In view of the conflicting views over the same question, we have to decide the reference. Since the matter is now again before this bench, we do not think that the view taken by the Division Bench in 1977 AWC 210 is binding on us sitting in a Division Bench. We, therefore, proceed to express our view on the question referred to this Bench. Section 146 (1) runs as follows : "If the Magistrate at any time after making the order under sub-Sec. (1) of Sec. 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Sec. 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof : Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute" .;