P.N. Bakshi, J. - (1.) ON the basis of the report of the police of police station Achnera, dated 20th October, 1974 the Sub-Divisional Magistrate passed a preliminary order under Section 145 (1) Cr.P.C. on 21st October, 74. Considering the case one of emergency, he also directed attachment of the property under section 146 (1) Cr.P.C. The parties were summoned to file their written statements on 22nd October, 74 the property was attached. Thereafter on 29th October, 74 Bisso Mai filed an application alleging that the report of the police contained incorrect allegations and there was absolutely no apprehension of breach of peace with respect to the disputed plot. It was prayed that the property be released from attachment. The Magistrate called for police report on this application. ON 19th Nov. 1974, Bisso Mai filed a written statement in which he asserted that he was the owner in possession of the disputed plot and that he had constructed a building thereon and that there was no apprehension of breach of peace. ON 3rd Dec. 74 the police report was submitted to the effect that the apprehension of breach of peace continued to exist before. ON the same day viz 3rd December, '74 Govind Prasad filed his written statement in which he asserted his ownership and possession of the plot in dispute and asserted that there existed an immediate danger of peace since Bisso Mai was interfering with his possession. The learned Magistrate again passed an order on 3rd December, '74 agreeing with the report of the police as to the existence of apprehension of breach of peace. He rejected the application of Bisso Mai for dropping the proceeding under section 145, Cr.P.C. and ordered that the proceeding shall continue. The court proceeded to record the statement of Bisso Mai in respect of his claim for possession over the land in dispute. The statement of Bisso Mai was unfinished and was to continue. Subsequently on 19th April, '76 the Magistrate being of the opinion that in view of the attachment of the land in dispute, he should not proceed further with the inquiry, he passed an order on the same date directing the parties to get their claim for possession decided by a competent court. It appears that in pursuance of this order, a civil suit for title and possession as filed by Bisso Mai and the matter is still sub judice. It appears from the record that on 6th October, '77 Bisso Mai again filed an application alleging that there was no apprehension of breach of peace and the proceedings be dropped. ON 27th January, 178, the police submitted a report that now there did not exist any apprehension of breach of the peace with respect to the land in dispute. In opposition Govind Prasad filed an application and affidavit on 31.3.78 that the report of the police was incorrect and that the apprehension of breach of peace continued to exist. The Magistrate did not accept the police report and considering all the circumstances passed an order on 31st March, '78 rejecting the application of Bisso Mai for dropping the proceeding and directed that the property shall continue to remain under attachment till the rights of the parties had been decided by the Civil Court. Aggrieved thereby a revision was filed by Bisso Mai before the Sessions Judge, Agra. This revision has been allowed on 3rd August, '78. The order of the Magistrate dated 31st March, '78 refusing to drop the proceeding and withdraw the attachment, have been set aside. The Sessions Judge has directed that the proceeding under Section 145 Cr.P.C. be dropped as redundant. Hence this revision by Govind Prasad. I have heard the learned counsel for the parties at considerable length and have also carefully scrutinized the record. Counsel for the applicant has contended that the impugned order passed by the Sessions Judge is illegal. The order passed by the Magistrate on 19th April, 1976 by which he directed the parties to get their rights decided by the civil court had become final, that since the apprehension of breach of peace continued to exist the Magistrate was correct in refusing to drop the proceeding and withdrawing the attachment that the direction of the Sessions' Judge for dropping the entire proceeding under Section 145, Cr.P.C. was illegal. Much controversy has been also raised between the parties on the interpretation of Section 146, Cr.P.C. Before deciding the other submissions, raised in the case I consider it necessary to analyse the legal position. Section 146 (1) authorises the Magistrate to pass a preliminary order, if he is satisfied as to the existence of an apprehension of breach of peace with regard to immovable property. After passing of such an order, he proceeds to conduct the inquiry in accordance with the provisions of Section 145 (4) Cr.P.C. and to pass a final order under section 145 (6) Cr.P.C. in favour of one of the parties whom he holds to be in possession on the date of the preliminary order. Under section 146, Cr.P.C. however he has been empowered to attach the property in dispute. This order of attachment can be passed in three contingencies. 1. When he considers the case one of emergency, after the passing of the preliminary order under section 145, Cr.P.C.
(2.) WHEN he comes to the conclusion on a consideration of the entire evidence that none of the parties is in possession of the property in dispute and When on a consideration of the evidence, he is unable to decide as to which party is in possession. In either of these three cases, he is entitled to attach the property in dispute. It is to be noticed that in the first contingency the order of emergency attachment is passed at any stage after the preliminary order, prior to the final decision by the Magistrate regarding the question of possession on the basis of evidence led by the parties u/S. 145 (4) Cr.P.C. In the second and third cases, however, the order of attachment is passed after consideration of the evidence which the parties have led in the inquiry under section 145 (4) Cr.P.C. It is thus clear that in the first case, there is no consideration by the Magistrate of the rights of the parties to possess the land, but in the second and third cases, there is a complete consideration by the court of the right to possession by the contestants. Obviously, therefore, in the first case, the attachment endures only for such period as the evidence has been recorded and a final decision has been given by the Magistrate under section 145, Cr.P.C. holding one of the two contesting parties to be in possession of the disputed land. In that event, he declares the possession of such party and forbids the other contestants from interfering with his possession except in due course of law. After coming to this conclusion, the emergency attachment which has been effected after the passing of the preliminary order, has to be withdrawn under the provision of the section 146 (1) Cr.P.C. because the apprehension of breach of peace no longer exists. In the second and third cases, however, the order for attachment is passed after the evidence has been recorded under section 145 (4) Cr.P.C. and the Magistrate has considered the same, but he is either unable to decide as to which party is in possession or comes to the conclusion that none of the parties is in possession. To be more explicit, the attachment order in the second and third cases is the last act of the court, passed at stage when the inquiry under section 145, Cr.P.C. is over but the evidence is not such that the Magistrate can hold one party or the other possession of the disputed property under section 145 (6) Cr.P.C. The above enunciation of the law is supported by my earlier decision also in Smt. Prem Lata and others v. Ram Lubhaya and others (1978 A.C.C. 336). Even in that I have clarified the legal position though in a different phraseology. Counsel for the applicant has placed reliance on a division bench case of this Court, reported in Sohan Lal Verma v. State of U. P. (1977 Alld. Cr.C. 167) and on its basis it has been urged that in either of the three situations, mentioned above, the proceeding under section 145 Cr.P.C. comes to an end the Magistrate to stay his hands completely. The controversy, after attachment has to be resolved by the Civil Court. It makes no difference whether the attachment is an emergency attachment or an attachment on account of the inability of the Magistrate to decide which of the two contesting parties are in possession or because he comes to the conclusion that none of the contesting parties are in actual possession of the disputed land. Had the position rested there, I would have been bound by the decision of the division bench and if I disagreed, the proper course open to me was to make a reference to a larger bench but that is not necessary at all because of the decision of the Supreme Court in Chandu Naik and others v. Sita Ram and others (A.I.R. 1978 S.C. 333). In that Supreme Court decision Mr. Justice Untwalia made the following observations : "For the guidance of the Magistrate we think it expedient in the interest of justice to indicate briefly as to how the Magistrate is to proceed for disposing of the proceeding. The Magistrate, in the first instance will try to conclude the proceeding in accordance with the various provisions of S. 145 of the Code. If he is able to declare the possession of either party on consideration of the evidence adduced or to be adduced before him he would do so. In that event the other party will be forbidden from creating any disturbance of the possession including the deemed possession, in case the application of the proviso to sub-S. (4) is found necessary of the party declared in possession. The Magistrate, then will have to withdraw the attachment in accordance with the proviso to sub-S. (1) of S. 146 because as per his order declaring a party in possession, there would be no longer any likelihood of the breach of the peace with regard to the subject of dispute. The party not found in possession by the Magistrate will have to seek the redress of his grievance, if any, elsewhere. If, however, the Magistrate decides that none of the parties was in possession of the disputed property on the dale of the order made under sub-S. (1) of S. 145 or if he is unable to satisfy himself as to which of them was in the possession of the subject of dispute he need not lift the attachment until a competent court had determined the rights of the parties as provided for in S. 145 (1). In such a situation recourse, if necessary, may be taken to sub-S. (2) of S. 146 of the Code either by the Magistrate or a civil court, as the case may be." This interpretation of the law, as given by the Supreme Court is to tally in keeping with view which I am expressing now and which I expressed earlier also. Even an obiter of the Supreme Court is binding upon the subordinate courts. In this view of the matter, I am of the opinion that there is no controversy now left upon to decide with regard to the interpretation of section 146 (1) Cr.P.C. Reverting now to the facts of the case the position appears to be as follows. The Magistrate after consideration of the evidence of the record, had come to the conclusion that the apprehension of breach of peace continued to exist. He therefore, rejected the application of Bisso Mai for dropping the proceeding vide his order dated 3lst March, 1978. This order of the Magistrate was passed after considering the objection of Bisso Mai, the police report and the affidavit filed by Govind Prasad as also the pendency of the civil suit between the parties There can be no doubt that the question whether an apprehension of breach of peace exists or not, is the subjective satisfaction of the Magistrate on the basis of the record. He has, after taking all these facts into consideration, rightly held that the apprehension of breach of peace continues to exist. The Sessions Judge was not correct in his view that since the police report on the earlier two occasions had been accepted, with regard to the existence of the apprehension of breach of peace. Therefore, the third time when the police reported that there was no apprehension of breach of peace, that report should also have been accepted by the Magistrate. There is no warrant in law for such a reasoning at all. The Sessions Judge also appears to be under the mistaken belief that the order of the Magistrate continuing the attachment was passed merely on the basis of the police report. That is not the correct factual position. As I have mentioned above, several factors were taken into consideration before the Magistrate passed his order dated 31st March, 1978. In my opinion, therefore, the order of Sessions Judge insofar as it directs the dropping of the proceeding under section 145, Cr. P. C. by Magistrate is an illegal order and must be set aside. With regard to the attachment of the property, the Magistrate has directed the same to continue till the rights of the parties are decided by the Civil Court. Herein the Magistrate has erred. The order of attachment in the circumstances of the present case was one of the emergency. As such it should be allowed to continue till such stage as the inquiry under section 145(4) is completed and the Magistrate has given his decision under section 145(6), Cr. P. C. Admittedly, on the facts which I have given above, the statement of Bisso Mai had only been recorded in part, that was continuing when the impugned order dated 19th April, 1976 was passed. The inquiry had not been completed. Learned counsel has urged that order dated 19th April, 1976 has become final because no party has gone up in revision or in writ petition for quashing that order. I do not agree with this contention. As a court of Revision the entire record is before me and this court has ample powers for correcting any illegality or irregularity in the proceeding, even though no, revision may have been filed by the parties. In my opinion the order dated 19th April, 1976 passed by the Magistrate insofar as it directs the attachment of the property till the decision of the rights of the parties by a Civil Court, is an illegal order and must also be modified to the extent that the attachment would only continue till the inquiry under section 145(4), Cr. P. C. had been completed and the magistrate has given a decision under section 145(6), Cr. P. C. The order of the Sessions Judge also, insofar as it directs the Magistrate to withdraw the attachment is an illegal order and that too must be set aside. Lastly there is no warrant in law at all for dropping the proceeding under section 145 Cr. P. C. The order of the Sessions Judge to that effect is clearly illegal. As a matter of fact, the correct procedure now to be followed by the Magistrate is to keep the property under attachment and to proceed with the completion of the inquiry under section 145(4) Cr.P.C. and thereafter to give his decision under section 145(6), Cr.P.C. The mere pendency of a civil suit is no bar to the continuance of criminal proceeding under section 145, Cr. P. C. If however, after the inquiry is completed, the Magistrate is unable to decide as to which party is in possession in that event, it will be open to him to pass another order under section 146, Cr. P. C. attaching the property till the rights of the parties are decided by the Civil Court. Having thus discussed the entire law on the subject and the facts of the case, I am of the opinion that this revision approbation must be allowed. The impugned order of the Session Judge dated 3rd August, '78 is hereby quashed order of the Magistrate dated April, 1976 insofar as it relates to the attachment of the property till the rights of the parties are decided by the Court is also modified to .the extent that the attachment shall continue during the pendency of the inquiry under section 145(4) Cr P. C. The Magistrate is now directed to proceed with the completion of the inquiry in accordance with the law in the light of the observations, made by me above.;