P.S. Shah, J.@mdashThis criminal application under Article 227 of the Constitution of India arises out of proceedings commenced under sections
145 and 146 of the Code of Criminal Procedure. There is a dispute between the petitioners, on the one hand, and the respondents 1 to 3 on the
other, about possession of a piece of land admeasuring 2 acres and 23 gunthas out of Survey No. 239 of Kumbhari Village in Taluka Bhokardan,
District Jalna. On August 22, 1975, the Sub-Inspector of Police, Bhokardan, submitted his report to the Sub-Divisional Magistrate, Jalna, for
commencing proceedings u/s 145 of the new Criminal Procedure Code of 1973, as there was a likelihood of breach of piece on account of the
dispute between the parties relating to the said piece of land. He also submitted that the said land be attached and the parties be restraining from
entering the said land. Acting on this report, on October 22, 1975, the Sub-Divisional Magistrate passed a preliminary order u/s 145 Criminal
Procedure Code directing the parties to appear before him to submit their say and evidence, if any. After the parties had filed their written
statement, on June 12, 1976, the Sub-Inspector submitted another report that the dispute had taken a serious turn and that there was likelihood of
commission of a serious offence and breach of the peace. On June 22, 1976, the Sub-Divisional Magistrate passed an order directing attachment
of the land u/s 146(1) of the Code and also appointed the Revenue Inspector as a receiver of the land. After considering the evidence led by the
parties, on October 5, 1976, the Sub-Divisional Magistrate passed a final order holding that petitioner No. 2 was in actual possession of the land
in dispute. In this view of the matter, he directed respondents 1 to 3 not to obstruct the possession of petitioner No. 2 over the land in dispute till
he is evicted by a due course of law.
2. Aggrieved by the order of attachment passed on June 22, 1976, the petitioners had preferred Revision Application No. 56 of 1976, in the
Sessions Court at Aurangabad. The respondents has also preferred Revision Application No. 113 of 1976 challenging the final order dated
October 5, 1976, in favour of petitioner No. 2. Both the revision applications were heard together and disposed of by a common judgment by the
learned Additional Sessions Judge, Aurangabad, by his judgment and order dated June 1, 1977. He dismissed the revision application preferred
by the petitioners but allowed that filed by the respondents and set aside the order dated October 5, 1976, passed by the Sub-Divisional
Magistrate and directed that the proceedings be sent back to him for decision according to law. Thereafter, on August 30, 1977, the Sub-
Divisional Magistrate passed an order continuing the order of attachment till the parties got their claim decided in a Civil Court as regards the right
of possession to the disputed land.
3. Mr. Agarwal, the learned Counsel appearing for the petitioners, informed us that having regard to the final order dated October 5, 1976, passed
by the Sub-Divisional Magistrate in favour of the petitioners, the Revision Application No. 56 of 1976 was not pressed even before the Additional
Sessions Judge. He however, contended that the view taken by the learned Judge, regarding the interpretation of the provisions of section 145
read with section 146(1) of the Code was erroneous in law, and in support of his contention he relied on a decision of the Division Bench of this
Court in Cajitan A. D''Souza v. The State, 79 BomLR 175. In our view, the contention of the Counsel is well founded.
4. The learned Judge has taken the view that once an order of attachment u/s 146(1) of the Code is passed, the proceedings u/s 145 must come to
a close because after making an order of attachment the Magistrate passing the order becomes Functus Officio and cannot decide the fact of
possession, and the only order that he can pass is to direct the parties to get the dispute regarding the possession determined by a competent
Court. In this view of the matter, the learned Judge held that the final order dated October 5, 1976 passed by the Sub-Divisional Magistrate is
without jurisdiction. On this preliminary ground alone, the revision application made by the respondents, was allowed by the learned Judge. A
similar question came up for consideration before a Division Bench of this Court in Cajitan A. D''souza case referred to above, and the Division
Bench on interpretation of the revisions of sections 145 and 146 of the Criminal Procedure Code has held that the Magistrate does not become
Functus Officio merely because of his passing an order of attachment during the pendency of the proceedings, because he considers the case to be
one of emergency. In the event of the Magistrate attaching the subject of dispute on the ground of emergency at any time after making the
preliminary order under the sub-section (1) of section 145, he would be bound to proceed with the inquiry and pass final orders under sub-section
(6) of section 145. On his passing such final orders the emergency attachment would naturally come to an end. In case however, the Magistrate
cannot come to a definite conclusion regarding the particular party being in possession of the property, the emergency attachment would continue
until adjudication by the competent Court, that is a Civil Court, determining the rights of the parties to the dispute relating to the subject matter of
the dispute. Under the circumstances the learned Judge was in error in taking the view that the Magistrate becomes functus officio on his passing an
order of emergency attachment after the preliminary order under sub-section (1) of section 145 is passed by him. The magistrate continues to have
jurisdiction over the subject matter of the dispute and, therefore, it cannot be said that the order dated October 5, 1975 passed by him was
without jurisdiction. In this view of the matter, the order allowing the Revision Application No. 113 of 1976 must be quashed and set aside and the
matter sent back to the Additional Sessions Judge, Aurangabad for disposal according to law on merits. The consequential order dated August 30,
1977, passed by the Sub-Divisional Magistrate will also have to be set aside.
5. In the result, the rule is made absolute the impugned order dated June 1, 1977 allowing the Revision Application No. 113 of 1976 and quashing
the order dated October 5, 1976 passed by the Sub-Divisional Magistrate is quashed and set aside, and the matter is remanded back to the
Additional Sessions Judge, Aurangabad, for disposal according to law on merits. The consequential order dated August 30, 1977 is also quashed
and set aside.