I.S.TIWANA, J. - (1.) THE petitioner impugns the order of the Sub -Divisional Magistrate, Sunam, dated October 24, 1986, purported to have been passed under Section 146 of the Criminal Procedure Code. the operative part of this order reads as follows : - "After listening the three parties and going through the record brought on the file I am of the considered view that attempts of both the parties to occupy the land can at any time lead to serious clash amongst the above parties. Keeping in view that the instant case is to one of an emergent nature, the land measuring 17 acres 1 kanal 4 marlas comprised in Khasra Nos. 22/8/9 -2, 4/14/ -1/4 -11 12/6 -2, 19/1/4 -12, 7/21/6 -7, 22/3/8 -0, 22/4/2 -18, 9/8 -0, 23/7/8 -0, 8/8 -0, 22/3/8 -0, 23/4/8 -0, 5/7 -12, 6/7 -12, 23/9/8 -0, 22/2/8 -0, 4/7/8 -16, 23/15 -7 -12, 14/8 -0 situated in village Chanauta, which is under dispute is attached under Section 146 Cr. P.C. and Naib Tehsildar Moonak is appointed its receiver. He is authorised to attach the land and take possession thereof and to hold the same under attachment until an order of any competent court determining the right of any party or to claim to the possession has been obtained. He is also authorised to manage the land in dispute and deposit the amount thereof in the Government treasury under rules, after deducting his commission at the rate of 3% Announced in open Court in the presence of the learned counsel for the parties. File be consigned to the record, after due compliance under rules. Dated 24.10.86. Sd/ - Executive Magistrate, Sunam", It is patently clear from the above noted part of the impugned order that what the Magistrate has done is to attach the property taking it to be a case of emergency and then to close the proceedings under Section 145, Cr.P.C. by consigning the file to the record. Having heard the learned counsel for the parties at some length, I find that the above noted order cannot possibly be sustained.
(2.) A combined reading of Sections 145 and 146, Cr. P.C., reveals that the latter Section is only a corollary to the former and the Magistrate while taking action under Section 146, can attach the disputed property in three situation - (i) if the Magistrate at any time after making the order under sub -section (1) of Section 145 considers the case to be one of emergency; or (ii) if he decides that none of the parties was then in such possession as is referred to in Section 145 or (iii) if he is unable to satisfy himself as to which of them; was then in such possession of the subject matter of dispute. In the first situation he can attach the property at any time after making the order commonly known as preliminary order under Section 145 (1) while in the other two situations he can act under Section 146 only at the final stage of the proceedings. As already pointed out above, in the instant case, the Magistrate has acted or passed the impugned order in the given situation as mentioned at No. (i) Could he then stop or close the proceedings under Section 145 after effecting attachment of the disputed property under Section 146? To my mind, he could not. By now it is the settled position (see Mathura Lal v. Bhanwarlal and another, AIR 1980 S.C. 242) that the jurisdiction of the magistrate does not end as soon as he has ordered attachment of the disputed property on the ground of emergency. If that is so, it is, then he has to conclude the proceedings under Section 145 initiated with the passing of the preliminary order under sub -section (1) of this Section by disposing of the matter on merits. For this view of mine I seek support from the following observation made by their Lordships of the supreme Court in the above noted case : - "The scheme of Sections 145 and 146 is that the Magistrate, on being satisfied about the existence of a dispute likely to cause a breach of the peace issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements. Then he proceeds to peruse the statements, to receive and to take evidence and to decide which of the parties was in possession on the date of the preliminary order. On the other hand if he is unable to decide who was in such possession or if he is of the view that none of the parties was in such possession he may say so. It he decides that one of the parties was in possession, he declares the possession of such party. In the other two situations he attaches the property. Thus a proceeding begun with a preliminary order must be followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders. There is no half way house, there is no question of stopping in the middle and leaving the parties to go to the civil Court. Proceedings may however be stopped at any time if one or other of the parties satisfies the Magistrate that there has never been or there is no longer any dispute likely to cause a breach of the peace. If there is no dispute likely to cause a breach of the peace. If there is no dispute likely to cause a breach of the of the peace, the foundation for the jurisdiction of the magistrate disappears. The magistrate then cancels the preliminary order. this is provided by Section 145 sub -section (5). Except for the reason that there is no dispute likely to cause a breach of the peace and as provided by Section 145(5), a proceeding initiated by a preliminary order under Section 145(1) must run its full course. Now, in a case of emergency, the Magistrate may attach the property, at any time after making the preliminary order. This is the first of the situations provided in Section 146(1) in which an attachment may be effected. There is no express stipulation in Section 146 that the jurisdiction of the magistrate ends with the attachment. Nor is it implied. Far from it. The obligation to proceed with the enquiry as prescribed by Section 145 sub -Section (4) is against any such implication. Suppose a Magistrate draws up a preliminary order under Section 145(1) and immediately follows it up with an attachment under Section 146 (1), the whole exercise of stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statement becomes futile if he is to have no further jurisdiction in the matter. And yet he cannot make an order of attachment under Section 146(1) on the ground of emergency without first making a preliminary order in the manner prescribed by Section 145(1). There is no reason why we should adopt a construction which will lead to such inevitable contradiction. We mentioned a little earlier that the only provision for stopping the proceedings and cancelling the preliminary order is to be found in Section 145(5) and it can only be on the ground that there is no longer any dispute likely to cause a breach of the peace. An emergency is the basis of attachment under the first limb of Section 146(1) ad if there is an emergency, no one can say that there is no dispute likely to cause a breach of the peace".
(3.) IT is, therefore, manifest that the Magistrate has not acted in accordance with law by shutting out the proceedings at this stage by consigning the file to the record. At one stage Mr. Sandhu, learned counsel fro the respondents, urged that the present petition is not maintainable in view of the provisions of Section 397(2) of the Criminal Procedure Code, as the impugned order is only an interlocutory order. I, however, do not feel impressed with this submission of the learned counsel. Firstly, the Magistrate as per his order has finally disposed of the case by closing the proceedings initiated by him under Section 145 Cr.P.C. and secondly I am of the considered view that it is a fit case wherein case the submission of Mr.Sandhu is to be accepted for argument's sake - the jurisdiction under Section 482, Cr.P.C deserves to be invoked as the Magistrate has patently failed to exercise the jurisdiction vested in him by closing the proceedings without recordings any final conclusion.;