JUDGMENT - B.N. DESHMUKH, J.:---This application under Article 227 of the Constitution of India is by the petitioner who is also an application before the learned Executive Magistrate, Greater Bombay, whose full designation is leave Reserve Deputy Collector, B.S.D. and Executive Magistrate, Greater Bombay. At the instance of the present petitioner, a proceeding under section 145 of the Code of Criminal Procedure, 1973, has been entertained by the learned Executive Magistrate and he has passed a preliminary order called upon the respondents to show cause why an appropriate order should not be passed under the section. The respondents seem to have appeared and the main contesting respondent, who is the younger brother of the petitioner, has filed his written statement in reply to the show cause notice. A preliminary order was passed on 18-2-1975. Subsequent to that order, he has also passed an order on 17th March, 1975 purporting to be one under sub-section (1) of section 146 of the Code, and it is this order which is being questioned in the present petition. 2. A few facts that must be noted are these : The present petitioner and the present respondent No. 2, who is opponent No. 1 in the original proceeding, are real brothers. According to the petitioner, they had a partnership business in Shop No. A-5 situate at Ambabai Mistry Nivas, N.C. Kelkar Road, Dadar, Bombay. That partnership between himself and his brother was dissolved by a written deed dated 28-2-1971. On and from 1st March, 1971 not only the shop and the business but the tenancy rights, goodwill etc. entirely belonged to the petitioner. On the basis of these rights he was running his business peacefully when a certain threat was held out by his brother which led to the filing of the application before the Magistrate. 3. It also appears that after the dissolution so called, the petitioner purchased another shop elsewhere and it is Shop No. 3 on Dr. Ambedkar Road in the name of his wife. It also appears that the present respondent No. 2, the younger brother, has his own independent shops either on the Senapati Bapat Marg or Parbhadevi Road during the period when the partnership in respect of the disputed Shop No. A-5 was running. The petitioner alleged that while he was away forcible possession was taken by respondent No. 2 with the help of respondents Nos. The petitioner alleged that while he was away forcible possession was taken by respondent No. 2 with the help of respondents Nos. 3 and 4 of Shop No. 3 on Ambedkar Road. He has also threatened to disturb the possession of the petitioner in respect of Shop No. A-5. Hence the petitioner moved the Executive Magistrate by an application under section 145 of the Code. 4. After verification and perhaps looking into the record such as was available the Executive Magistrate felt satisfied that there was likely to be a breach of peace and he ought to entertain in the proceedings under section 145 of the Code. Accordingly he passed the preliminary order and issued show cause notice. 5. Respondent No. 1 appeared and filed a written statement in reply to the show cause notice on March 10, 1975. In that reply he asserts that inspite of the so called dissolution which is sham and bogus he is still the joint owner of the business being conducted in Shop No. A-5, on N.C. Kelkar Road, Dadar. Not only he is a joint owner but he is in joint possession thereof. If therefore the petitioner were to use force to prevent respondent No. 2 from entering his shop and exercising his right and joint possession, it is likely that the would also use force. Having title as well as joint possession and having held out a threat of use of force in this manner, respondent No. 2 applied on his own for the attachment of this Shop at No. A-5 in Mistry Building. It is after considering the matter without regarding any further evidence that the learned Executive Magistrate passed the impugned order dated 17th March, 1975. Under the order, the Executive Magistrate side that he has also attached Shop No. 3 from Ambedkar Road on a report lodged by the wife of the petitioner on 17th February, 1975. In addition there seemed to be some criminal complaints which are lodged at the Dadar Police Station. He, therefore, felt that both the cases are of emergency and since Shop No. 3 has been sealed the other shop, viz. Shop No. 5-A should also be sealed pending the disposal of both the applications. Shop No. 5-A was thus ordered to be sealed by the Police Inspector of Dadar Police Station. In fact it was so sealed. He, therefore, felt that both the cases are of emergency and since Shop No. 3 has been sealed the other shop, viz. Shop No. 5-A should also be sealed pending the disposal of both the applications. Shop No. 5-A was thus ordered to be sealed by the Police Inspector of Dadar Police Station. In fact it was so sealed. After the present petition was entertained by this Court on March 22, 1975, an interim order was passed by Division Bench of this Court directing Rule to be issued and directing the Police Inspector, Dadar Police Station to unseal the shop and hand over possession to the petitioner. The possession has been restored to him. 6. Before we consider the merits of the petition, two preliminary objections raised by Mr. Vyas, learned Counsel for the respondent, deserve to be noted Mr. Vyas points out that the petitioner has already applied by way of a revision application to the City Sessions Court, Bombay, under the provisions of section 397 of the Code of Criminal Procedure. At the motion hearing the City Sessions Court refused to entertain the application on the ground that the order of sealing the premises in question till the decision under section 145 was given, was an inter-locutory order and hence the power conferred by section 397(1) of the code cannot be exercised in such matter. The appropriate provision in that behalf is contained in sub section (2) of section 397. On the short ground that a revision application under the new Code of Criminal Procedure did not lie against an interlocutory order, the City Sessions Court refused to entertain the application. That order was passed on 19th of March, 1975. The present application has been subsequently filed within three days not under the code of Criminal Procedure but as a Criminal application under Article 227 of the Constitution invoking the powers of superintendence of this Court in relation to courts and Tribunal subordinate to it. 7. Mr. Vyas point out the petitioner has deliberately suppressed the fact of his having applied to the Sessions Court while moving this Court by way of a writ petition. On that short ground for suppression of an important fact, this petition should not be entertained but should be thrown out. 7. Mr. Vyas point out the petitioner has deliberately suppressed the fact of his having applied to the Sessions Court while moving this Court by way of a writ petition. On that short ground for suppression of an important fact, this petition should not be entertained but should be thrown out. The learned Counsel for the petitioner Shri Vora argued that the learned Judge of the City Sessions Court pointed out to him that a revision application does not lie against an interim order and if his client was so advised; he may approach the High Court under Article 227 The being so he felt that there was no relevance in referring to that proceeding while filing the writ petition before this High Court. He also admitted that undoubtedly it would have been better if he would have referred to it but his intention was not to suppress information from this Court and if at all that impression is gained by this Court he would express regret for what had happened. 8. Apart from that he points out that if a revision application did not lie and was entertained at all by the Sessions Court, the jurisdiction of this Court in entertaining and disposing of a writ Petition under Article 227 of the Constitution remains unaffected and the fact of abortive application before that Court can be no consequence. Shri Vyas then argues that the powers of revision of the City Sessions Court and the High Court are defined to be the same by the provisions of the new Criminal Procedure Code. Once these powers are exercised and exhausted by Sessions Court an application cannot lie to this Court under sub-section (3) of section 399 of the Code. He further adds that the powers of the Sessions Judge being the same as that of the High Court in that behalf it must be assumed that a revision application had been rejected as if by this Court and no second application should lie or should be entertained. 9. We find an obvious fallacy in this argument. What the Sessions judge did was to point out to the petitioner that the remedy sought to be pursued by him was not available to him at law and, therefore, the Sessions Court will not entertain the revision application at all. 9. We find an obvious fallacy in this argument. What the Sessions judge did was to point out to the petitioner that the remedy sought to be pursued by him was not available to him at law and, therefore, the Sessions Court will not entertain the revision application at all. This is entirely different from entertaining a revision application and disposing it of on merits, which is the only contingency contemplated by sub-section (3) of section 399. Then again the powers of the Sessions Judge may be similar to those of the High Court. It may also be that once a revision application is entertained on merits by the Sessions Judge and he passes some order on merits, a further application to the High Court would not lie in view of the clear provision of this statute. However, when the proceeding of the present type outside the provisions of Chapter XXX of the Code of Criminal Procedure is sought to be initiated under the general powers of superintendence of this Court under Article 227 of the Constitution, unless it could be shown that the High court itself had entertained and passed an order on merits, an application of the present type does not seem to be barred. We would therefore, reject this technical objection raised by the learned Counsel Shri Vyas for respondent No. 2 and consider the present petition on its merit. 10. While going to the consideration on merits Mr. Vyas has a further point to urge by which this court should not take the view which is contrary to the view already taken by the learned Executive Magistrate. The arguments in that behalf is that the petition alises out of a proceeding under section 145 of the Code. While interacting an application under section 145(1) the basis for passing a preliminary order is the subjective satisfaction either from a report of the Police Officer or upon such other information as may be available to him. In a revision application against an order entertaining a dispute under section 145(1), the High Court is not supposed to consider the evidence or the sufficiency thereof from which the satisfaction of the Executive Magistrate has been arrived at. He points our that a contrary view was taken by this Court earlier but the controversy has been set at rest by the Judgment of the Supreme Court in (R.N. Bhutani v. Miss. He points our that a contrary view was taken by this Court earlier but the controversy has been set at rest by the Judgment of the Supreme Court in (R.N. Bhutani v. Miss. Mani J. Desai)1, A.I.R. 1968 S.C. 1444. So far as this part of his argument is concerned, it is difficult to take exception any to the approach. What he further argued is that an order in proceedings under sub-section (1) of section 146 is merely a consequential order in proceedings under section 145 already entertained by the Executive Magistrate. If the Magistrate passes an order of attachment or an appointment of Receiver under the provisions of section 146, we must apply the same test of subjective so far as the decision of the Magistrate is concerned. This is the extension of the principle of sub-section (1) of section 145 of the provisions of sub-section 146(1). In the dispute before us we are called upon to consider as to when the Magistrate should resort to the provisions of section 145 when a serious order of attachment of a running business is being passed by him. 11. In addition to the principles laid down by the Supreme Court while deciding the nature of the subjective satisfaction under section 145, Shri Vyas also reminded us that the jurisdiction under Article 227 is a limited one and should be sparingly used in cases of this type. He referred to the decision of the Supreme Court in the case of (Dharangadhra Chemical Works Ltd. v. State of Saurashtra and others)2, A.I.R. 1957 S.C. 264. We do not think that the judgment in Dharangadhra Chemical Works Ltd. could be a guideline or of relevance in deciding cases of the present type. That was a dispute arising under the Industrial Disputes Act and the main questions of fact that was being agitated was whether the status of the agarias was that of a workman or that of an independant contractor. The Supreme Court pointed out that this was essentially a question of face and on the evidence led by the parties, the Industrial Tribunal which is primarily appointed for setting the dispute has come to a reasoned conclusion on a question of fact. On such conclusion even if on a reappraisal of evidence another view was possible the High court should not taken that view while exercising its powers of superintendence under Article 227. On such conclusion even if on a reappraisal of evidence another view was possible the High court should not taken that view while exercising its powers of superintendence under Article 227. It is not for correcting every wrong decision that the power of superintendence can be exercised but the main function of the High Court is to see that law is observed and if an error of law going to the rest of the matter is committed guidelines should be laid down within which the Tribunals ought to decide the dispute before them. We do not understand how except by a far fetched reasoning the principle in incited by the Supreme Court can be usefully used in the present dispute. However, when we ultimately pass the order, we will indicate how the power of this Court under Article 227 ought to be exercised when an order under section 146 is being considered in an independent application like this. 12. Considering the objection of the alleged extension of the principle of section 145 to the provisions of section 146, we think that the two sections deal with the entirely different situation and are not identical either in their language or in their scope. There is no doubt that the provisions of section 145 and the sections that follow are made within a view to decide a dispute speedily and not to allow the disputes relating to possession of immovable property to take a shape of arm conflict. It is this character of a speedy summary remedy which makes it necessary for the legislature to clothe the Executive Magistrate with certain powers to make up his mind on the material supplied to him and to take decision. That being so, a satisfaction of the Magistrate contemplated by sub-section (1) of section 145 is, as the Supreme Court points out, a satisfaction based upon the report or other information available to him. It is therefore left to his discretion to decide whether a case for entertaining the dispute arises and if he so thinks he is bound to entertain the petition and issue process. 13. Shri Vyas also brought to our notice an unreported judgment of a Division Bench of this Court where this process of coming to a satisfaction by the Magistrate has been pointed out by the Court to be a process of subjective satisfaction. 13. Shri Vyas also brought to our notice an unreported judgment of a Division Bench of this Court where this process of coming to a satisfaction by the Magistrate has been pointed out by the Court to be a process of subjective satisfaction. That word has not been specifically used by the Bench, but little seems to turn upon what expression is used. Undoubtedly it is his satisfaction and that satisfaction is permitted to be forward either on the report of the Police Officer or upon other information laid before him. 14. Whatever the consequence of entertaining such a dispute is, the moment a dispute under this section is entertained either side which likely to interfere with the possession of the petitioner is issued a show cause notice and the legislature expects that within a short time of two months the entire dispute would be settled. The settlement of the dispute in this case on the basis of a report is to see who was in actual possession with or without title of a certain piece of property within two months next before the date of the dispute. That partys possession is to be protected and the other party is required to go to a Civil Court for establishing rights if any, if not satisfied with the decision given. It is the physical possession within two months next before the dispute which is alone to be decided upon by the Magistrate and protection afforded to that citizen who is found is such possession. If after entertaining such a petition the Magistrate issue a process it may be that in the circumstances mentioned in section 146, the question of possession may arise for consiperation and he might have to pass further orders. We might now look little close to the provisions of section 146. 15. Section 146 permits a Magistrate to clamp attachment upon a property in either of the circumstances mentioned in that section. The first is the Magistrate has to consider the case to be one of emergency and that is what we are required to consider in the present case. 15. Section 146 permits a Magistrate to clamp attachment upon a property in either of the circumstances mentioned in that section. The first is the Magistrate has to consider the case to be one of emergency and that is what we are required to consider in the present case. We may just mention that the other two occasions at which attachment could be levied are if the Magistrate decides that none of the parties was then in such possession as is referred to in section 145, or he is unable to satisfy himself as to which of them was then in such possession of the subject matter of the dispute. These two eventualities take into consideration a hearing of the matter under section 145 and a final decision arrived at by the Magistrate. If the decision could be that none appears to be in possession or the decision was that it was extremely doubtful which of them was in possession, the Magistrate undoubtedly can attach the property, frame a reference and refer it to a competent Court. The learned Magistrate has passed the impugned order after taking the observation in the order itself that this appears to be a case of emergency. 16. Even in this behalf the learned Counsel for the respondents argues that looking to the nature of the remedy and the type of jurisdiction that has been vested in an Executive Magistrate, this Court should be slow in taking a different view of the matter under its jurisdiction under Article 226. We would therefore, consider whether there should be interference at all by this Court in proceedings of this type under. Article 227, and if so, under what circumstances this Court should do so. 17. There is no doubt that the Executive Magistrate has been made the primary judge by the legislature in respect of the proceedings under section 145 and also in respect of the decisions to be taken or conclusions to be arrived at under section 146. The language of the two sections is slightly different. 17. There is no doubt that the Executive Magistrate has been made the primary judge by the legislature in respect of the proceedings under section 145 and also in respect of the decisions to be taken or conclusions to be arrived at under section 146. The language of the two sections is slightly different. Whereas under section 145 the Executive Magistrate is to be satisfied from a report of a police officer or upon other information, so far as the provisions of section 146 are concerned the Magistrate has to consider than an emergency exists, or has to decide that a certain type of possession of the parties appear to be or does not appear to be there. The scope of the two sections therefore seems to be different. Much more material than a mere report or other information must be taken into account by the Magistrate before he attaches property which is by itself a very serious matter. 18. In a case of the present type where the petitioner has led before the Magistrate sufficient evidence of his being in possession of shop premises where cloth business on a fairly large scale is being run, it is undoubtedly a serious matter to dispossess a person in possession and to seal and lock the shop until the dispute is finally decided. Though the legislature expects the decision to be made in a short time, it is notorious knowledge that even matters under section 145 take quite long time to be decided. 19. The nature of the order under section 145 is therefore more serious than the one issuing process under section 145. It also follows that merely because a dispute is entertained, the Magistrate is not at once entitled to act under section 146. He must first “consider” whether the case is one of “emergency” or must decide whether either of the two circumstances contemplated by section 146 (1) exists. The exercise of the jurisdiction under section 146 contemplates not mere subjective satisfaction but a decision of a judicial Tribunal which has to be demonstrable on the face of it. If the circumstances mentioned in section 146 do not exist the Magistrate has no jurisdiction to attach property whatsoever. The exercise of the jurisdiction under section 146 contemplates not mere subjective satisfaction but a decision of a judicial Tribunal which has to be demonstrable on the face of it. If the circumstances mentioned in section 146 do not exist the Magistrate has no jurisdiction to attach property whatsoever. This being so, it would be open to this Court in its general power of superintendence under Article 227 to indicate how the jurisdiction under section 146 should be exercised and if a particular case is found to be of a gross type, interference would undoubtedly be warranted. We would hasten to add that the High Court would normally be allow to exercise its extraordinary powers under Article 227 in correcting every small mistake of an Executive Magistrate. It is only in the gross case where on the face of the record the order seems to affect the obvious rights of a citizen that the Court will not only lay down the legal approach but will also correct the order passed in fact. 20. Looked at that point of view, we find the material led before the Magistrate in this case shows that the petitioner and his younger brother were once trading as partners in the disputed shop No. A-5. A writing has been executed purporting to be a deed of dissolution signed by respondent No. 2 and attested by a Advocate. Not only the deed of dissolution is signed by respondent No. 2 but he has also signed a receipt for an amount of Rs. 25,000/- being the amount paid to him on account of final settlement of the accounts of the partnership including the assets, good-will and tenancy rights attached to the business. This is a document of 19th March, 1971, and the present dispute is being raised in 1975. This document prima facie shown that respondent No. 2 has severed his connections with shop No. A-5. The record does not show that respondent No. 2 had already another business or started a new business of his own in some other locality. That statement was made before us by the learned Councel for the petitioner Shri Vora. We therefore, called upon the learned Councel for respondent No. 2 to State whether his client has any such business at all at Prabhadevi area. That statement was made before us by the learned Councel for the petitioner Shri Vora. We therefore, called upon the learned Councel for respondent No. 2 to State whether his client has any such business at all at Prabhadevi area. It was stated that he does have such a shop but in the absence of respondent No. 2 being present in the Court it was difficult to state whether that shop was started at about the same time when the deed of dissolution was executed by the parties. 21. While going through the original records we further found that there was another agreement signed by respondent No. 2 before a Presidency Magistrate and it is also dated 19th March, 1971. That statement was in the nature of an undertaking or an assurance to the petitioner that respondent No. 2 had not incurred any loan in the name of the shop Society Cloth Stores run in Shop No. 5-A nor had he incurred any loan in some other name but in relation to the shop which was to belong hereafter exclusively to the petitioner. While reading that document, we found that there was a reference to another shop Janata Cloth Centre. When we asked for clarification from the learned Counsel of respondent No. 2 we found that this name had transpired even during the subsistence of the alleged shop doing cloth business in shop No. A-5 and respondent No. 2 already had a separate as business in that name. 22. The written statement filled before the Magistrate was also seen by us. The main defence of respondent No. 2 seems to be that he is not a clever person but he is rather gullible. His elder brother seems to have deceived him and obtained his signatures on many documents which do not represent truth. In spite of his signatures he is a joint partner in the business at the disputed cloth shop No. A-5. The proceedings under section 145 do not seem to decide title but if parties plead certain circumstances they must be taken into account for coming to the conclusion of the fact of possession. We do not want to suggest anything in this judgment which will affect in any manner the discretion of the learned Executive Magistrate in deciding the dispute under section 145. We do not want to suggest anything in this judgment which will affect in any manner the discretion of the learned Executive Magistrate in deciding the dispute under section 145. If any observations are made in the body of the judgment the Magistrate should ignore them and decide the dispute before him on the basis of such evidences as would be placed before him by the parties. 23. However, as far as the limited case of existence of emergency is concerned, we find that the learned Magistrate had already acted upon a second petition filled by the present petitioners wife in relation to shop No. 3 and had attached that shop. There the allegation appears to be that the present petitioners wife was in possession of the shop but it was forcibly taken possession by the present respondent No. 2. What material was led before the Magistrate in that case is not known to us and we will assume that the Magistrate acted on the basis of such material as was placed before him in that case by the wife of the present petitioner and prima facie thought that on the material led before him not only he should entertain the application under section 145, but he should also act under section 146 because a case of emergency was made out. We must here point out at once that because a case of emergency may exist in a sister proceeding that cannot be a ground nor the present proceeding it was for him to apply his mind to the facts and circumstances before him and then come to the conclusion whether a case of emergency exists so that an attachment was very much necessary. 24. When we went through paragraphs 3 and 4 of the main order, we found that the learned Magistrate has been very much impressed by the fact that at the instance of the wife of the present petitioner a shop alleged to have been invaded by respondent No. 2 has already been attached. He at once concludes that therefore there is an emergency in case of the present disputed shop No. 5-A also and both shops should be sealed. This is hardly a logical reasoning much less a consideration which is required to be made while exercising the drastic powers under section 146(1) by the Executive Magistrate. He at once concludes that therefore there is an emergency in case of the present disputed shop No. 5-A also and both shops should be sealed. This is hardly a logical reasoning much less a consideration which is required to be made while exercising the drastic powers under section 146(1) by the Executive Magistrate. We find that there is total absence of such a consideration without which he had no jurisdiction at all to act under sub-section (1) of section 146. When Tribunal subordinate to this Court or susceptible to the powers of superintendence of this Court acts in such a manner without considering the circumstances, which must be considered and which are the very foundation for acting under the drastic provisions of section 146(1), it becomes necessary for this Court not only to point out the correct legal approach but also to correct the error committed by the Executive Magistrate. It is for these reasons that we are satisfied that the learned Magistrate had no jurisdiction in the present case to exercise the powers vested in him under sub-section (1) of section 146. 25. We may further point out that simply because a proceeding under section 145 (1) is entertained, the parties may not at once behave and a militant party may still take recourse to force. Bearing in mind that at any time after the entertainment of the petition under section 145 it must be necessary for the Court to pass further orders, the legislature in its wisdom has so provided by the opening clause of sub-section (1) of section 146. The language used is that at any time after making the order under sub-section (1) of section 145. Entertaining application under section 145(1) is a prime necessity before acting under section 146, but it is not necessary that in every case the action must be taken immediately while a petition under section 145(1) is being entertained. That an action of the present type can be taken simultaneously with the entertainment of the petition seems to be obvious. But if any of the circumstances mentioned in section 146(1) developed later on, it is open to the Magistrate to act under section 146(1). We make this pointed reference to emphasise the fact that initially order in the present case was on 18th February, 1975. A similar order in relation to the other shop was made on 17th February, 1975. But if any of the circumstances mentioned in section 146(1) developed later on, it is open to the Magistrate to act under section 146(1). We make this pointed reference to emphasise the fact that initially order in the present case was on 18th February, 1975. A similar order in relation to the other shop was made on 17th February, 1975. After the show cause notice was issued, respondent that he has a right to visit the shop and if he is prevented he might perhaps use force. That was a threat held out only to enable the Magistrate to pass an order of the present type. The Magistrate should have determined how far there is truth in this threat held out by respondent No. 2. Prima facie that pleading, perhaps with the legal assistance, merely indicates the legal rights that respondent No. 2 may have, was there any truth in the threat and was there any possibility of physical action being taken leading to the disturbance of such a type that the Magistrate should have felt that an emergency existed. 26. The parties deem to be of trading community and if for four years prima facie after the deed of dissolution nothing has happened, the learned Magistrate should have considered all these fact exists so that a drastic action like attachments of property and deprivation of the petitioner of his means of livelihood was really called for. 27. For all these reasons we are satisfied that the learned Magistrate is impressed by the considerations which are extraneous, viz. the existence of so called emergency relating to other shop No. 3 on a different road altogether far away from the shop in dispute. On a non-existent emergency the jurisdiction of the Magistrate is also non-existent and such an error requires to be rectified under the powers of superintendence under Article 227 of the Constitution. We are thus satisfied that the order of attachment dated 17th March, 1975 ought not to have been passed by the learned Magistrate. We therefore quash and set aside that order and make this rule absolute. The petitioner has already been placed in possession of the shop under the interim orders of this Court which possession is thus confirmed. 28. We are thus satisfied that the order of attachment dated 17th March, 1975 ought not to have been passed by the learned Magistrate. We therefore quash and set aside that order and make this rule absolute. The petitioner has already been placed in possession of the shop under the interim orders of this Court which possession is thus confirmed. 28. We further direct that the learned Executive Magistrate will dispose of the present case at an early date, so that the parties in their respective rights be allowed to pursue such remedy as may be available to them. We are aware that the Executive Magistrate may have a backleg of work and a positive direction with respect to time may create some difficulties to him. However, we will very much appreciate if the case is disposed of on merits within two months after the receipt of the case papers by him from this Court. -----