ORDER M.N. Shukla, J. - This reference is directed against the order dated 12-4-1967 passed by the S.D.M., Faridpur, district Bareilly in the matter of the release of the disputed property from attachment in proceedings u/s 145 Code of Criminal Procedure. 2. The facts giving rise to this reference are that the property which was the subject matter of those proceedings consisted of agricultural plots grove and some residential quarters situate in village Kareli, Tahsil and district Bareilly. The proceedings commenced on an application dated 8-6-1966 made by Sadiq Husain Applicant, the Up Pradhan of the Gram Samaj, Kareli. The allegations made by him were that the property belonged to H.W.M. Hearsey and his sister who left this country after independence and were said to have died heirless, that the property vested in the Gram Samaj and the Applicant became its owner in his capacity as Up Pradhan, that the opposite parties were determined to disturb his possession giving rise to grave apprehension of breach of peace and hence it was prayed that an order u/s 145 Code of Criminal Procedure be passed. The application was accompanied by an affidavit with the result that on the same day the City Magistrate passed a preliminary order pointing out that from the affidavit he was satisfied that there existed dispute between the parties likely to cause apprehension of breach of peace. The preliminary order recited that "as the matter is of emergency the property in dispute is ordered to be attached and placed in some reliable custody pending enquiry." It would thus be evident that the order of attachment was passed on the same day as the preliminary order and was in fact incorporated in the preliminary order itself. This order could be passed only under the third proviso to Sub-section (5) of Section 145 Code of Criminal Procedure. 3. The aforesaid order was sent to the Kotwali for compliance. On 1-7-1966 opposite party No. 5 filed an objection supported by an affidavit stating that H.W.M. Hearsey and his sister were alive and were leading retired life in France and they had executed a sale-deed of the said property in favour of the contesting opposite parties through their general attorney Sri A.B.L. Agnihotri of Kanpur and that they were in possession as vendees. It was also stated that the order of attachment, if given effect to, would cause irreparable loss and injury to them. Thereupon the City Magistrate passed an ex parte order on 1-7-1966 and directed the Tahsildar as under: Please return the attachment order unexecuted to this Court immediately if it has not been executed so far. A report was received from the Tahsildar on 27-7-1966 showing that the attachment had been made on 19-6- 1966 and the order had already been executed by the Sadar Qanungo. 4. The case was later transferred to the file of Sri Tripathi, S.D.M., Faridpur. On 12-4-1967 he passed an order as under: I think there is no emergency to keep the property under attachment now. Without going into detail and discussing the merits of the case I order that the attachment order dated 8-6-1966 is withdrawn. Let Inspector Kotwali be directed to deliver possession to the persons concerned who were in possession of the property on the date of attachment. Both parties are directed to produce their entire evidence on 15-4-67 in support of their claims. It is this order which is impugned in this reference. 5. Thus, it would be clear that the order under revision provided for two important matters. In the first place, it lifted the attachment and secondly it directed the proceedings to continue. The question of law, therefore, which has been canvassed before me is as to whether it was open to the Magistrate, to withdraw the attachment and at the same time allow the proceedings u/s 145 Code of Criminal Procedure to subsist. 6. It may be mentioned that apart from the questions raised in this reference, the opposite parties also made an application u/s 561 Code of Criminal Procedure in this Court praying that the entire proceedings u/s 145 Code of Criminal Procedure were incompetent and should be quashed. I am not inclined to decide that application on merits because its decision would depend on the finding on a number of questions of law on which the parties are at issue. Those factual controversies were better left to the Magistrate himself for decision. I am unable to appreciate any prima facie question of law or jurisdiction not mixed with contest of facts on which it may be possible to quash the proceedings. Those factual controversies were better left to the Magistrate himself for decision. I am unable to appreciate any prima facie question of law or jurisdiction not mixed with contest of facts on which it may be possible to quash the proceedings. At this stage, therefore, I would merely decide the points which are covered by the reference made to this Court. 7. In the impugned order the learned Magistrate has also referred to the fact that an affidavit had been filed by one Chhabile that he did not proclaim through beat of drum the attachment of the property in dispute as ordered by the Magistrate on 8-6-1966. It appears that the learned S.D.M. was influenced by this consideration and proceeded on the assumption that in the absence of proclamation through beat of drums there could not be any valid o> legal attachment of the property. My attention was drawn to the fact that the same person filed an affidavit in this Court resiling from the position set out in his previous affidavit and Consequently no reliance should be placed on his previous averment that proclamation by beat of drum was not actually made. I may also refer to the recital contained in the attachment order itself that the beat of drum had been made on the spot. Thus, prima facie there was nothing to justify the conclusion that the necessary formalities for effecting the attachment were not observed. 8. However, even assuming for a moment, that the drum was not beaten on the spot the legal question which falls for consideration is whether proclamation by the drummer is an essential requisite for attachment u/s 145 Code of Criminal Procedure and whether no attachment could be made otherwise in law. It may be noticed that even though Section 145 Code of Criminal Procedure makes a provision for the attachment of the property in certain circumstances, the term "attachment" is not defined either in the Code of Criminal Procedure or the IPC, nor is the actual mode of attachment prescribed by the Code of Criminal Procedure. Section 88(4) of the Code of Criminal Procedure, however, prescribes the mode in which immovable property is to be attached for the purpose of that provision. Section 88(4) of the Code of Criminal Procedure, however, prescribes the mode in which immovable property is to be attached for the purpose of that provision. It will be noticed that there too proclamation by beat of drum is not provided in order to effect attachment of course, attachment under the CPC does not come into being unless all the formalities prescribed by the rules in the Code have been followed but those provisions are apparently irrelevant for the purpose of deciding the nature and mode of attachment under the Code of Criminal Procedure. The object behind the attachment in the two proceedings is not similar. In civil proceedings the purpose is to prohibit the judgment Debtor from transferring or changing the property in any manner so as to make the property available for the satisfaction of the decree. On the other hand, the object of the provisions u/s 145 Code of Criminal Procedure is to keep an effective control over the subject matter of dispute so as to prevent the contesting party from committing breach of peace in their bid to obtain actual possession. Naturally, therefore, in civil proceedings care is taken to give wide publicity so as to put people intending to deal with the property on their guard. In an attachment under the Code of Criminal Procedure it is sufficient only to intimate to the parties that the property is being taken in custodia legis so that in the meantime they may not attempt to secure forcible possession. This primary object is ade-quately achieved by the recitals contained in the preliminary order itself and according to Sub-section (3) of Section 145 Code of Criminal Procedure a copy of this order is to be served like summons on the opposite parties mentioned in the order and further at least one copy is to be published by being affixed to some conspicuous place at or near the subject of dispute. In the instant case I find a similar recital in the preliminary order dated 8-6-1966. A direction regarding the service of that order is also explicitly contained therein. In the instant case I find a similar recital in the preliminary order dated 8-6-1966. A direction regarding the service of that order is also explicitly contained therein. Thus, I am inclined to take the view that if a preliminary order has been duly passed and served on the party concerned and a care-taker of the property has been appointed on behalf of the court; the attachment is legally effectuated and it cannot be vitiated for want of beat of drum. 9. The next question which arises for consideration is as to whether the attachment made under the proviso to Sub-section (4) of Section 145 Code of Criminal Procedure could be withdrawn in the circumstances of this case. In my opinion attachment once made in proceedings u/s 145 Code of Criminal Procedure can be withdrawn only when the apprehension of breach of peace has ceased and the proceedings are dropped Under Sub-section (5) of Section 145 Code of Criminal Procedure or when the case has been finally disposed of on merits. It is clear from the terms of the proviso to Sub-section (4) of Section 145 Code of Criminal Procedure that the attachment is in the event of emergency pending decision under that section. Emergency cannot be regarded as altogether identical in its import with apprehension of breach of peace. There is a distinction between the two. If danger to breach of peace is so imminent as not to be capable of being averted otherwise and requiring immediate action, it would furnish a case of emergency and justify an order of attachment. On the other hand, the apprehension of breach of peace may not be so grave as to justify attachment and recourse to proviso to Sub-section (4) of Section 145 Code of Criminal Procedure. However, once a preliminary order has been passed and attachment has been made, there is no provision in Section 145 Code of Criminal Procedure to authorise the Magistrate to withdraw the attachment. It is significant that while u/s 146 Code of Criminal Procedure the Legislature has expressly conferred that power on the Magistrate concerned to withdraw attachment, there is no similar provision to be found in Section 145 Code of Criminal Procedure. It cannot be seriously disputed that the order of attachment comes into being simultaneously with or following what is called the preliminary order and not independently of it. It cannot be seriously disputed that the order of attachment comes into being simultaneously with or following what is called the preliminary order and not independently of it. If there is no apprehension of breach of peace in the opinion of the Magistrate, surely there would be no emergency and no attachment could be made. Consequently, if the apprehension of breach of peace is shown to have ceased to exist and the proceedings are dropped Under Sub-section (5) of Section 145 Code of Criminal Procedure the foundation for the attachment disappears and it is bound to lapse. Likewise, if there is a final decision on merits given by the Magistrate in favour of a party Under Sub-section (6) then the order of attachment terminates, for on the very terms of the proviso it cannot last beyond the date of the decision. 10. The facts of the instant case, however, indicate that it is not covered either by Sub-section (5) or Sub-section (6) of Section 145 Code of Criminal Procedure. The Magistrate did not record the finding that the apprehension of breach of peace had ceased to exist and admittedly he did not finally dispose of the case on merits. On the contrary, his positive direction that the proceedings u/s 145 Code of Criminal Procedure would continue amounts to a tacit finding that the apprehension of breach of peace had not ceased to exist otherwise the very foundation for such proceedings would be demolished. It is, therefore, not understandable as to how and under which provision of law the attachment in question could have been withdrawn. I am fortified on the view that I am taking on the interpretation of Section 145 Code of Criminal Procedure by a decision of the Ajmer High Court in the case of Madho Lal v. Mst. Ladi and Anr. AIR 1951 Ajm 12 decided by Oak, J. as he then was. In that case the attachment was directed to be made on 3-2-1950. The other party raised an objection on the following day whereupon the Court passed a second order vacating its earlier order of attachment. This second order was passed on 8-2-1950. There was no order passed u/s 145(5) Code of Criminal Procedure. The proceedings were also directed to continue. It was held that the order withdrawing the attachment was illegal. That seems to be exactly the position in the instant case. 11. This second order was passed on 8-2-1950. There was no order passed u/s 145(5) Code of Criminal Procedure. The proceedings were also directed to continue. It was held that the order withdrawing the attachment was illegal. That seems to be exactly the position in the instant case. 11. The impugned order had also been assailed on two other grounds. Firstly, that the order dated 1-7-1966 trying to alter the previous order dated 8-6-1966 was passed at the back of the Applicant and he was never called upon to meet the averment made by the opposite parties that the attachment had not been actually effected and secondly, in any event the Magistrate grossly misdirected himself by leaving it to the Police Inspector to deliver possession to the persons who were not in possession of the property on the date of attachment. 12. There is no doubt that the order dated 1-7-1966 seeking to depart from the previous order of attachment dated 8-6-1966 was passed at the back of the present Applicant. The prejudice caused to him can, however, be mitigated by giving him an opportunity of satisfying the Court that the attachment was duly made. It will not in any manner preclude the opposite parties from establishing to the satisfaction of the Magistrate that such attachment had not been actually made. 13. As regards the direction contained in the order that the Sub Inspector of Police would deliver possession to the party who was in possession of the property on the day of attachment, I think on the facts of this case such order was improper and illegal. Firstly, it appears from the record that the actual attachment was made by the Tehsildar through the Sadar Qanungo. As such the Police Inspector could not be credited with any personal knowledge in the matter of possession and secondly such order is a judicial order and it is not open to the Magistrate to delegate this function to the Police. The legal position seems to be that if the proceedings are dropped u/s 145(5) Code of Criminal Procedure on the ground that there is no apprehension of breach of peace the Magistrate can order release of the attached property in favour of the person who was possessed of it before it was attached provided that there is something on record to indicate so. By so doing he would be restoring the status quo and it would be under the inherent powers of the Court to pass incidental orders regarding the disposal of the property. 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 should be effected. The reason is that while the first category would be covered by the inherent powers being exercised to release the property, the second is not, as the police officer cannot arrogate to himself the authority of the Magistrate to determine as to who was in possession. It was held in Smt. Kaniz Fatima Bibi v. State of UP 1962 AWR 752 DB that for the purpose of passing an order about the release of the property in proceedings u/s 145 Code of Criminal Procedure the Court may utilise the evidence already on the record, which may be contained either in the memorandum of attachment (Fardqurqi) or in the evidence already recorded by it and exercise its judicial discretion as to the person to whom the property is to be delivered. The Magistrate, if he is satisfied by the evidence already on record that any particular person was in possession at the time the attachment was made, will hand over the property to him. If he is not so satisfied, the obvious thing for him is to pass no orders. It was observed in that case that the order u/s 517 Code of Criminal Procedure relating to the disposal of the property is a Magisterial order and there could be no delegation of the judicial functions. The Magistrate must clearly specify the person to whom the possession is to be delivered by the police. If the name is specified in the memorandum of attachment, he may simply direct the police to hand over possession to the person from whose possession the property was attached for in that case he would be ordering delivery of possession to the person named in the Fard qurqi and there would be really no delegation of the judicial functions. In the instant case we find that the Fard qurqi does not name the person from whose possession the property was attached. In the instant case we find that the Fard qurqi does not name the person from whose possession the property was attached. In the circumstances the Magistrate was not justified in directing the police to hand over possession of the property to the person from whose possession the attachment was made. The contrary direction contained in the impugned order was, therefore, illegal. 14. For all these reasons I am satisfied that the impugned order dated 12-4-1967 passed by the SDM, Faridpur, Bareilly, was contrary to law and must, therefore, be set aside. I, therefore, accept this reference, set aside the order of the Magistrate and direct him to decide as to whether there was attachment duly made on 19-6-1966 and thereafter proceed in accordance with law. An application u/s 561-A Code of Criminal Procedure was also made in this Court by the opposite parties in this case but since it is not pressed, it is dismissed.