Agarwala, J.:— This reference arises in a proceeding started under section 145 Criminal Procedure Code. It appears that there was a dispute between Sadloo Bhar and his brothers on the one hand and Rajdeo Singh on the other, concerning a plot of land and a crop standing thereon. Sadloo Bhar moved the learned Magistrate by means of an application stating that there was an imminent danger of a breach of the peace concerning this land and the crop and that the property should be attached. The learned Magistrate seems to have been satisfied as to the imminence of the danger of a breach of the peace and ordered that notice might be issued under section 145, sub-section (1), Criminal Procedure Code to the parties concerned. He further ordered that the property in dispute be attached. On the date fixed in the notice issued under section 145(1) Sadloo Bhar did not appear. The learned Magistrate dismissed Sadloo Bhar's application for default on 4th July, 1946, and ordered that the attached property be released. He did not specify in his order in whose favour the property was to be released. Thereafter an application was made by Rajdeo Singh that the application of Sadloo Bhar might be dismissed and the attached property should be released from the possession of Sadloo Bhar and restored to him. A similar application was made by Sadloo Bhar and his brothers that the attached property, which was in their possession should be released in their favour and not in favour of Rajdeo Singh. The learned Magistrate fixed 30th August, 1946, for the hearing of these two applications. Sadloo Bhar appeared while Rajdeo Singh was absent. The learned Magistrate then adjourned the case for the following day. On the following day, i.e, 31st August, 1946, Sadloo Bhar was present but Rajdeo Singh was not present. It does not appear that any notice of the adjourned hearing was issued to Rajdeo Singh at all, and it does not seem likely that he could have been served with any notice since only one day elapsed between the previous date and the adjourned date. On this adjourned date the learned Magistrate passed the following order:

“The second party (Rajdeo Singh) has again absented itself. Let the attached property be released in favour of the first party (Sadloo Bhar and his brothers).”

Against this order Rajdeo Singh filed an application in revision to the learned Sessions Judge, Azamgarh. The learned Sessions Judge has taken the view that the procedure adopted by the learned Magistrate in releasing the attached property in favour of Sadloo Bhar and his brothers was based on no evidence on the record and was wholly without jurisdiction; and he has referred the matter to this Court.

In my opinion, the procedure adopted by the learned Magistrate was wholly illegal. The first order of dismissal, for default and the second order directing the attached property to be released in favour of the second party were both unwarranted by law.

Section 145 is one of those sections in the Criminal Procedure Code the object of which is prevention of a breach of the peace. In preventing disputes relating to land, likely to cause a breach of the peace, the State is as much concerned as private parties to the dispute. Proceedings under section 145 Criminal Procedure Code may be taken by a Magistrate suo moto on the information received by him from any source or they may be taken by him upon the complaint of one of the contending parties. Whether he takes cognizance suo moto upon some information received by him or whether he takes cognizance of the dispute upon the complaint of one of the contending parties, he must in both events be himself satisfied that a dispute likely to cause a breach of the peace exists and when once he is so satisfied, section 145(1) Criminal Procedure Code enjoins upon him to make an order in writing requiring all the parties concerned in such dispute to attend his court and to file on a date to be fixed by him written statements of their respective claims as respects the fact of actual possession of the subject of the dispute. It should be noticed that the Magistrate is required to issue notice to all the parties concerned in the dispute, including the complainant. This provision shows that when once the Magistrate is satisfied as to the existence of a dispute likely to cause a breach of the peace, all the contending parties thereafter are in the position of opposite parties. I do not say that where one of the parties has already filed a complaint stating his claim as respects the fact of actual possession of the subject of dispute, he need file a fresh written statement on the date fixed by the Magistrate. His complaint can be taken to be a written statement. The point, however, to be noticed is that such complainant ceases to be a complainant or a plaintiff in a dispute but is relegated to the same position as occupied by other parties to the dispute. It is for this reason again that there is no provision in the Criminal Procedure Code for a complaint made under section 145 to be dismissed for default of appearance of the complainant after the Magistrate had issued an order under sub-section (1) of that section. Sub-section (5) of section 145 of the Code of Criminal Procedure provides for the only mode of cancellation of the order passed under sub-section (1) of section 145 before the matter is finally disposed of on the merits. That mode is that any party to the dispute or any interested person may show to the Magistrate that no dispute relating to land likely to cause a breach of the peace exists or had existed. If this is shown to the satisfaction of the Magistrate he shall cancel his order. If that is not shown his order is final.

In view of these considerations it may be laid down that the order of the Magistrate dated the 4th July, 1946, dismissing the application of Sadloo Bhar for default was not an order contemplated by law. In certain cases such an order may be construed as being in substance one under section 145, sub-section (5), in the sense that when the Magistrate dismisses an application for default he is satisfied that there is no dispute likely to cause a breach of the peace. I am, however, satisfied that in the present case, the learned Magistrate was not acting under section 145(5) at all. In this view of the matter, the subsequent proceedings would also fall to the ground. Assuming, however, that the learned Magistrate's order was passed under section 145(5), let us see if what he has done later on can be supported.

The learned, Magistrate had attached the subject of dispute under the provisions of the second proviso to sub-section (4) of section 145. When he dismissed the application of Sadloo Bhar he ordered that the attached property be released. But he did not order in whose favour the property was to be released. On a later date he ordered the property to be released, in favour of Sadloo Bhar and his brothers, probably on the ground that the other party was absent. This order was passed without taking any evidence. This order is wholly unauthorised.

When property has been attached by a Magistrate under the provisions of section 145 and proceedings have been dropped under sub-section (5), what is the Magistrate to do with the attached property? It is obvious that the Magistrate is functius officio and has no jurisdiction thereafter to decide the claim of the parties as to the fact of possession of one or the other of the parties over the subject matter of the dispute(1). Still, since the attached property is in his possession he must make some order with regard to its disposal. On this point there appears to be a difference of opinion. One view is that the Magistrate has no power to make any order as to the disposal of the property in favour of any party. According to this view the proper order to pass in such a case is that the attachment shall continue until the question of title has been decided by the civil courts(2). Another view is that the Magistrate has no jurisdiction to pass an order that the land in dispute should continue under attachment and that he should direct that the property should be handed over to the party from whose possession it was attached(3). In Jam Bhambho Khan v. Makhdum Muhammad Hasan Shah(4) it was further held that where it was not possible to place the parties in the position they occupied in relation to the property before the order under sub-section (1) of section 145 was passed, the parties should be directed to seek redress of their grievances in civil courts.

To my mind when proceedings are dropped under sub-section (5) on the ground that there never existed a dispute likely to cause a breach of the peace, the Magistrate's jurisdiction to act under the provisions of section 145 altogether ends, and as such he can only pass an incidental order relating to the attached property. If he enters into a minute examination as to the claims of the respective parties regarding the fact of actual possession on the date of the initial order, he will be doing precisely what he is not empowered to do. Therefore, proceedings having been dropped there is no question of his taking any evidence as to who was in possession on the date of the preliminary order. If the record shows that the property was attached from the possession of a certain party, the Magistrate must be deemed to have inherent jurisdiction to restore possession of the property to that party. By doing so he will be restoring the status quo ante. If, however, the record does not show this, then the only alternative for him is to pass an order that the attachment of the property should be lifted without saying in whose favour the release was to be affected. If the lifting of the attachment creates a danger to the breach of the peace, the Magistrate can start fresh proceedings under section 145(1). It is only in the case of sale proceeds of crops, in deposit in court, that the Magistrate will direct that they will so remain in deposit till the claim of any party is declared by are competent civil court.

In the present case the learned Magistrate has passed an order releasing the property in favour of one of the parties simply because the other party was absent on the date fixed. This was irregular. The Magistrate is not entitled to found an order upon the mere absence of a party.

As in my opinion it does not appear that the learned Magistrate, in passing the order of the 4th of July, 1946 dismissing the complaint of Sadloo Bhar for default was satisfied that there was no likelihood of a breach of the peace, I hold that his order of that date was without jurisdiction, and so was his second order of the 31st of August, 1946. Both these orders must, therefore, be set aside and I do so hereby, and send back the case to the learned Magistrate to be tried according to law.

Application allowed.