1. ' This revision petition has arisen out of an order dated 27-6-1977 of the Sub-Judge, Magistrate 1st Class, Hattian. By this order the land in dispute was attached by the learned Magistrate urgently feeling that there is a dispute between the parties over a piece of land which (dispute) is likely to cause the breach of peace. Against this order of attachment a revision petition was filed in the Court of Sessions Judge, Muzaffarabad who, after hearing the parties, referred the matter to this Court with the recommendation that the learned Magistrate was not justified in passing the impugned order and so the quashment of the same was requested.
2. ' The learned Sessions Judge has written in his order of reference that the Magistrate was not able to follow the procedure laid down in section 145(1), Cr. P. C. And further it was without recording any evidence that the impugned order of attachment of the property in dispute was made and in this behalf he has referred to subsection (4) of section 145, Cr. P. C., thereby meaning that no order of attachment could be issued by the Magistrate without first recording the evidence of the parties.
3. Furthermore, it was also reported that as a civil suit is also pending between the parties, criminal proceedings under section 145, Cr. P. C. Could not continue legally. He has referred an authority to show that the proceedings taken by the learned Magistrate were without jurisdiction.
4. ' After hearing the learned counsel for the parties and perusal of the record I find that though the preliminary order under section 145, Cr. P. C. Was not properly drawn initially by the trial Magistrate, yet he was able to rectify the preliminary order to be made as required by law by the very impugned order elaborately written by him thus to satisfy himself that there is a dispute existing between the parties over a piece of land in dispute which is likely to create breach of peace. In view of the learned Magistrate, there is an eminent danger of the breach of peace while weighing the circumstances given in the application under section 145, Cr. P. C. And further supported by an affidavit. There is no counter-affidavit to show that there was no likelihood of any breach of peace to be caused over the land in dispute.
5. The learned Sessions Judge is wrong to say that the order of attachment is essentially to follow the evidence recorded by the Magistrate under subsection (4) of section 145, Cr. P. C. This contemplated evidence is to be recorded by the trial Court for the conclusion of the inquiry. The order of attachment to be made falls under second proviso of section 145(4), Cr. P. C. And it can be passed at any stage or time by the trial Court during the proceedings under section 145, Cr. P. C.
6. And that it is A not necessary for the Magistrate to record the evidence of the parties and then to make or not to make an order of attachment. Second proviso is given under section 145(4), Cr. P. C.
7. Which means that subsection (4) is not applicable in relation to an order of attachment as is reported by the learned Sessions Judge. The civil suit between the parties may not become a bar to proceed under section 145, Cr. P. C. If the circumstances are such which) require the interference of a criminal Court to avoid a breach of peace over the subject-matter of the dispute. The authority cited by the learned Sessions Judge is not applicable here in the circumstances of the instant case. That could only apply if a civil Court appears to have taken such steps during the pendency of the civil suit which in a way are sufficient by themselves to stop the breach of peace to be caused. Here in this case there was suit of Mangta respondent for possession of the land in dispute which was dismissed by the civil Court. He then again came to the civil Court to get his certain rights determined for the land in dispute. We are not supposed to say anything here with regard to the suit of the petitioner pending in the civil Court. But one thing is cleat that the learned Magistrate was satisfied from the information received that the dispute likely to cause the breach of peace is existing between the parties concerning the land in question and who then has acted under second proviso of section 145 (4), Cr. P. C.
8. ' Therefore, I am not inclined to accept the reference made by the learned Sessions Judge and to interfere with the impugned order passed by the learned Magistrate. That being so, the revision petition is dismissed.