- (1.) THE facts of this petition under Section 482 of the Cr. P. C. 1973, (hereinafter referred to as the new Code) are that a report was made by the police about the apprehension of the breach of the peace between the parties in regard to the possession of land in dispute to the Executive Magistrate, Sirs a, who passed orders under Section 145 (1) of the new Code and attached the subject-matter of the dispute under Section 146 (1) of the new Code. He directed the parties to file written statements of their claims and also to lead evidence. Some evidence was examined before him. The petitioners have filed this petition in this Court on the ground that once an attachment is made under Section 146 (1) of the new Code, the proceedings under Section 145 of the Code terminate and the Magistrate becomes functus officio. He seeks the quashing of the proceedings, which the Magistrate is now taking under Section 145 of the new Code and also the evidence recorded by him. The petition is opposed by the respondents.
(2.) THE Cr. P. C. 1898, (hereinafter referred as the old Code) was amended in 1955 and the power of attachment was given to the Magistrate In case of emergency in Section 145 under Sub-section (4 ). In some cases where the Magistrate could not himself determine about the possession of the subject-matter of the dispute in accordance with the provisions of Section 145 of that Code, he had the power to refer the matter to the Civil Court under Section 146 of that Code. In the new Code, the power of attachment has been omitted from Section 145 and it is now provided in Section 146 (1 ). The right of the Magistrate to refer the matter to the Civil Court has also been omitted.
(3.) SECTIONS 145 and 146 of the new Code are as under : 145 (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by the Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary and, if possible, decide whether any and which of the parties was, at the date of the order made by him under Sub-section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under Sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under Sub-section (1 ). (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exist or has existed, and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final. (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to Sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring each party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to Sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed (b) The order made under this Sub-section shall be served and published in the manner laid down in Sub-section (3 ). (7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the in-quiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. (8) If the Magistrate Is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. (10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107. Section 146 (1): 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 if he decides that none of the parties was then in such possession as is referred to in Section 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. (2 ). . . .;