JUDGEMENT This revision petition is filed against the order passed on 7-8-1976 by the Executive Magistrate, Daman in Case No-37/75 under Section 145 Cr. P. C. 2. In the order the learned Magistrate has found that the disputed land which is an Idgah belongs to the Government and its possession is with the Government a third party who has neither sought to be impleaded nor brought on record. He has accordingly directed the Inspector of Police, Daman to hold its possession until further orders. He has also by the same order forbidden the parties to the proceedings or their agents to interfere in the possession of the Idgah until ousted by the due authority of the competent Court. 3. The facts giving rise to the proceedings may be shortly stated as follows:- At Dhobi Talao, Kathiria, Nani Daman, there exists an Idgah. It is an old and ancient one. Prayers (namaz) are offered by the Muslim community at the said Idgah twice in a year namely, on Ramzan Id and Bakri Id conducted by a priest known as "Pesh Imam". The revision petitioner claims to be a member of the Kharawad Sunnat Jamat and according to him the control and management of the Idgah have always been with the Kharwad Sunnat Jamat which used to maintain and repair the Idgah, although members of the other three Jamats namely, Khariwadi Sunnat Jamat, Ghanchiwad Sunnat Jamat, and Zapabar Sunnat Jamat of Nani, Daman, used to attend and offer prayers at the Idgah on Ramzan Id and Bakri Id. In the year 1897 the Khariwadi Sunnat Jamat however stopped attending and offering prayers as they built their own Idgah elsewhere. The other two Jamats continued to offer prayers jointly along with Kharwad Sunnat Jamat in the Idgah as before. Dispute arose in 1974 when Amirbhai B. Grasia (opponent No. 1) objected to the 'Pesh Imam' of Kharwad Sunnat Jamat conducting the prayers on Ramzan Id and a decision was taken to hold a separate prayer presided over by the "Pesh Imam" belonging to Zapabar Sunnat Jamat. Dispute arose in 1974 when Amirbhai B. Grasia (opponent No. 1) objected to the 'Pesh Imam' of Kharwad Sunnat Jamat conducting the prayers on Ramzan Id and a decision was taken to hold a separate prayer presided over by the "Pesh Imam" belonging to Zapabar Sunnat Jamat. As there can be no two prayers, the Kharwad Sunnat Jamat moved the Collector and District Magistrate, Daman to take appropriate steps to prevent the members of the Zapabar Sunnat Jamat led by Amirbhai B. Grasia from illegally interfering with the lawful authority of Kharawad Sunnat Jamat in the matter of organizing and holding prayers at the Idgah on Ramzan Id falling on 17th and 18th October, 1974. The Executive Magistrate, Daman initially drew up proceedings under S. 107 which was subsequently converted into proceedings under S. 145 Cr. P. C. by order dated 24-9-1975. Party No. 3 to the proceedings under S. 107 was not made a party to the proceedings under S. 145. On 4-10-1975 parties to the proceedings filed their written statements and documents. The present petitioner in his written statement claimed that though members of the Zapabar Sunnat Jamat could offer prayers, they did not have any right to appoint a "Pesh Imam" to conduct the prayers. It is the Imam of their Jamat who was alone competent to conduct the prayers. The other side objected to the existence of any such right in Kharawad Sunnat Jamat. According to it, the Idgah being the property of the entire Muslim community of Nani Daman, no particular Jamat could claim any preference over any other Jamat in the matter of selection of priest to act as 'Tesh Imam" in the prayers to be offered on Ramzan Id and Bakri Id days. It was also averred in the written statement to attach the Idgah under S. 146 (1) to prevent breach of peace which was imminent in view of Ramzan Id of the year 1975. On the same day the Executive Magistrate passed an order attaching the Idgah under S. 146 (1) of the Code and posted the case to 0-10-1975 for evidence. 4. Parties led oral as well as documentary evidence and on consideration of the evidence so led in the learned Executive Magistrate made the order of 7-8-1976 which is challenged as one being passed without jurisdiction. 5. Mr. 4. Parties led oral as well as documentary evidence and on consideration of the evidence so led in the learned Executive Magistrate made the order of 7-8-1976 which is challenged as one being passed without jurisdiction. 5. Mr. S. K. Kakodkar, learned counsel (or the petitioner has contended that the dispute is as to who should be the Pesh Imam in the two Id prayer meetings and there is really no dispute as regards the possession of the Idgah. The Idgah is not in possession of any Jamat Its use is confined only to the offerings of prayers on two occasions in the year i. e. at Ramzan Id and Bakri Id. There is no necessity to exercise any overt act of possession at any other time. Such being the nature of the dispute which is also accepted by the Magistrate, provisions of Section 145, Cr. P. C. are not at all attracted Once the case is taken out of the purview of S. 145 it will follow that S. 145 will not apply. Assuming that provisions of S. 145 are applicable the impugned order cannot be supported because the Magistrate has not applied his mind considered and discussed the evidence led in by the parties. His next submission is that this is also not a case which could be dealt with under S. 147 and if the Court holds otherwise, the order cannot still be sustained because the proceedings were originally initiated under S. 145 Cr. P. C. and secondly there is no provision of attachment of the property under S. 147 Cr. P. C. The case has to be sent down if at all provisions of S. 147 are applicable for a decision as to if the dispute likely to cause breach of peace still exists and if it so exists to initiate fresh proceedings under S. 147 of the Code. His last submission is that as the dispute neither falls under S. 145 nor 147( Cr. P. C., the proceedings are liable to be dropped and the order of the Magistrate deserves to be set aside. 6. Mr. Usgaocar has raised a preliminary objection regarding the maintainability of this petition in so far as it relates to the order of attachment made on 4-10-1975, though he concedes that the final order determining possession which is without jurisdiction, be set aside. 6. Mr. Usgaocar has raised a preliminary objection regarding the maintainability of this petition in so far as it relates to the order of attachment made on 4-10-1975, though he concedes that the final order determining possession which is without jurisdiction, be set aside. According to him the Magistrate made an order of attachment on 4-10-1975 considering it to be a case of emergency. The said order not having been challenged in time has become final and binding between the parties to the proceedings. The same cannot now be assailed. The only remedy for the petitioner now is to approach the competent Court for a decision as to the right of possession and not this Court. In support of his contention he has placed reliance in the cases of Dandapani Palav v. Madan Mohan Palav, (1976 Cri LJ 2014) (Ori) Hakim Singh v. Girwar Singh (1976 Cr. LJ 1915 (Delhi)) and Chandi Pra-sad v. Omprakash, (1976 Cri LJ 209 (All)). 7. Mr. J. Dias, learned Government advocate submits that there is no illegality in the order. According to him the order of attachment made on 4-10-1975 is a sort of interim order; the parties took it in that light, filed written statements and adduced evidence by submitting to the jurisdiction of the Magistrate. It is the last order which is the final order under S. 146 (1) Cr. P. C. because the Magistrate has found that none of the parties was in possession and possession was with the Government. The irregularity, if any, in making the order of 4-10-75 is curable under S. 465 Cr. P. C. 8. On the assumption that the dispute falls within the purview of S. 145 I shall proceed to examine the preliminary objection raised by Mr. Usgaocar. There appears to be a conflict of views on the question as to whether the jurisdiction of the Magistrate to inquire about the possession of the subject of dispute continues even after the attachment. The view that the jurisdiction of the Magistrate ceases is held by Orissa High Court (1976 Cri LJ 2014 (Ori)), Delhi High Court, (1976 Cri LJ 1915 (Delhi)) and Hon'ble Justice H. N Kapoor, Allahabad High Court (1976 Cri LJ 209 (All)). The other view that the Magistrate is still competent to inquire into possession is held by Justice Srivastav of Allahabad High Court (See 1977 Cri LJ 453 (All)). Mr. The other view that the Magistrate is still competent to inquire into possession is held by Justice Srivastav of Allahabad High Court (See 1977 Cri LJ 453 (All)). Mr. Justice Srivastav agrees that lateral interpretation of S. 146 (1) would lead to the conclusion that the Magistrate's jurisdiction to inquire into possession ceases after he makes an order of attachment of the subject of dispute on the ground of emergency. But he is of the view that as the literal interpretation leads to an anomalous and absurd situation and conflict between two provisions of law on the subject the Court can find out the true intention of the Legislature. That the Court can do so he has placed reliance on AIR 1959 SC 422 and AIR 1957 SC 628 . Finally after examining the provisions of Ss. 145 and 146, both of the old and new Code, in the light of the test laid down by the Supreme Court in the aforesaid two decisions, he concludes as follows:- "It is therefore evident that literal interpretation sought to be put on S. 146 (1) of the new Code will not only lead to an anomalous situation but will also be inconsistent with the main provisions incorporated in S. 145. The Magistrate would refrain from attaching the property even in cases of emergency simply because such an attachment would terminate his jurisdiction. This cannot possibly be the intention of the Legislature". 9. Mr. S. K. Kakodkar, the learned counsel for the applicant submits that the view taken by Justice Srivastav being based on sound and convincing reasons should be accepted by this Court in preference to the other view. 10. It is clear on a perusal of the provisions contained in S. 146 (1) of the new Code that it contemplates three contingencies in which attachment of the subject of dispute, may be made. Whilst the last two contingencies arise only after completion of the inquiry, the first contingency may arise even before inquiry. After attachment of the subject of dispute in the last two contingencies the proceedings under S. 145 terminate and the dispute before the Criminal Court comes to an end and which party is entitled to possession has to be decided by the competent Court. The Parliament being conscious of this position have chosen to equate the first contingency at par with the other two contingencies. The Parliament being conscious of this position have chosen to equate the first contingency at par with the other two contingencies. The result therefore is that even in the case of attachment on account of emergency the same consequences will follow that is to say the proceedings under S. 145 will terminate and the dispute before the Criminal Court will come to an end and which party is entitled to possession has to be decided by the competent Court despite the fact that this was not the position under the repealed Code. Some compelling reasons must therefore be shown to take out the case of attachment effected on ground of emergency out of the consequences that follow the attachment. Some grounds may be, as pointed out by Justice Srivastav, and there may be other grounds. According to Justice Srivastav, sub-sec. (4) of S. 145 makes it clear that normally and primarily it is the duty of the Magistrate to decide the question of possession. Only in those two cases where ha is unable to decide the question of possession or in cases where he decides that none of the parties was in possession he has to wait for the decision of a competent Court. Under the old Code of Criminal Procedure the Magistrate could refer the matter to the Civil Court for decision. In the new Code of the Criminal Procedure this provision has been dropped but this much is clear that except in cases where the Magistrate is unable to decide or if he decides that none of the parties was in possession, it is the Magistrate who wall decide the question of possession. If this is the real intention of the law, S. 146 (1) should not be interpreted to mean that if the Magistrate attaches the property on account of emergency his jurisdiction comes to an end. 11. It is of course true that in the two contingencies the Magistrate cannot decide the question of possession. Now to those two contingencies the Parliament thought it fit to add one more contingency i. e. attachment on account of emergency. Once this contingency is included in Section 146 (1) of the new Code, the provisions of sub-sec. (4) of S. 145 cease to be in operation and therefore it appears to me that there is no conflict between the two provisions of law. Once this contingency is included in Section 146 (1) of the new Code, the provisions of sub-sec. (4) of S. 145 cease to be in operation and therefore it appears to me that there is no conflict between the two provisions of law. Nor is there the anomalous or absurd situation calling for an investigation into the intention of the Legislature. It may be noted here that it is not necessary for a Magistrate to. pass an order of attachment in every case. He can then proceed under S. 145 (4) of the Code and pass the final order. Provisions of S. 145 (4) will continue to operate in those cases. But as soon as he passes the final order of attachment after being satisfied of the existence of an emergency same consequences as in the other two cases are bound to follow. After all S. 146 of the new Code is a preventive measure in order to prevent a breach of the peace. This object is satisfied the moment the Magistrate decides to attach the subject of dispute. It is then left to the parties to approach the competent Court to determine their rights. Once the Magistrate makes the attachment under S. 146 (1) of the new Code, the proceedings under S. 145 come to an end. He can later on of course withdraw the attachment not only under this contingency but also attachment made in the other two contingencies if he feels satisfied that the likelihood of breach of peace no longer exists. But then also all the proceedings under S. 145 will come to an end. Further a Magistrate under S. 145 adjudicates about possession for a limited purpose Only and confines himself to find as to who was in possession at the time of passing of the preliminary order or two months prior to the date on which the report of the police officer or other information was received by the Magistrate. The Magistrate may continue to inquire about and decide the question of possession of this limited character in cases other than the three types covered under S. 146 (1) of the new Code. So, for the reasons stated above I am unable to fall in line with Justice Srivastav. The Magistrate may continue to inquire about and decide the question of possession of this limited character in cases other than the three types covered under S. 146 (1) of the new Code. So, for the reasons stated above I am unable to fall in line with Justice Srivastav. My conclusion therefore is that after attachment of the subject of dispute on the ground of emergency under S. 146 (1) of the new Code the Magistrate will have no jurisdiction to proceed to decide the question of possession. The order by which the executing Magistrate has called upon the parties to put in statements and adduce evidence after effecting the attachment on account of emergency will be without jurisdiction and the final order deciding possession of the subject of dispute cannot be supported as conceded by Mr. Usgaocar. But according to the learned Government advocate the last order may be treated as the final order of attachment because the Magistrate has practically found that none of the parties was in possession of the subject in dispute and the possession was with the Government I am unable to agree with him for the simple reason that no specific order of attachment has been made in terms of S. 146 (1) and that the order virtually amounts to a decision on possession. 12. The next point for consideration is whether the case falls within the purview of S. 145 of the new Code. 13. A perusal of the relevant papers in this case would show that the dispute really relates to the question who should supply a Pesh Imam for conducting prayers on the two days of Ramzan Id and Bakhri Id. In other words right is claimed by one party against the other to have the prayers conducted in the Idgah on those two days by its Pesh Imam. The Magistrate has also accepted this position when he in his judgment said "I uphold this argument and opine that there is a dispute between the two parties for the right of appointing Pesh Imam for the said prayers in the Idgah on Id days and not for the possession of the Idgah." There is therefore no dispute regarding the possession of the Idgah by one party or the other. According to me the dispute is not really as regards the possession of the temple or mosque as the right to perform festival. Therefore, the proper section to be applied is S. 147 and not S. 145 of the Code. No decision taking a contrary view has been cited before me by the other side I am therefore inclined to accept the submission made by Mr. Kakodkar that the dispute does not fall with the purview of S. 145 of the Code. (See 1971 (2) Cr LJ 234 (Ker), AIR 1951 Cal 93 : (52 Cri LJ 940) (FB). ) 14. As regards the question whether the dispute could be dealt with under S. 147 Mr. Kakodkar relying on the case of Direndranath Das v. Hrishikesh Mukerjee, particularly on para 16 of the judgment ( AIR 1951 Cal 93 : (52 Cri LJ 940 (FB)) submits that S. 147 is also not attracted. Paragraph 16 as extracted below is to the following effect- "(16) It may well be that a dispute as to worship may not be a dispute as to the user of any land, if the dispute concerns a right to worship generally and not a right to worship at a particular place in a particular manner. For example, a sect of some community might take objection to prayers being offered in the worshippers' homes, in streets or open places, to a deity. The persons objecting might claim no right to the worshippers' homes or the streets or open spaces in which such worship was being offered. But they might deny the right of the worshipper to worship. Such a dispute would merely concern the right of worship and could not possibly be said to be a dispute relating to the user of land". 15. The aforesaid passage seeks to bring out the distinction between a dispute which concerns worship generally and a dispute which concerns a right to worship at a particular place in a particular manner. According to the learned counsel for the applicant the dispute in this case is one which concerns a right to worship generally and not of the other category so as to come under the purview of S. 147. According to the learned counsel for the applicant the dispute in this case is one which concerns a right to worship generally and not of the other category so as to come under the purview of S. 147. I am however unable to agree with him for the reasons that though possession of the Idgah as such is not involved in the dispute, the dispute if properly analysed is not simply confined as to who should be the Pesh Imam. According to the case of the applicant there can be no two prayers in the Idgah. In other words the Zapabar Sunnat Jamat will not be allowed to offer separate prayers conducted by their Pesh Imam because there can be only one prayer conducted by the Pesh Imam of Kharwad Sunat Jamat. What does this imply? Does it not imply that the Zanpara Sunnat Jamat is prevented from using the Idgah as a place of worship. In this view of the matter, the dispute really relates to the right to perform certain services in the Idgah. I tun, therefore, of the, opinion that S. 147 is the proper section to be used by the Magistrate. 16. Mr. Usgaocar, learned counsel for the respondents Nos. 1 and 2 has argued that though the final order determining possession of the parties may be set aside, the order dated 4-10-1975 be maintained. I would have agreed to this had the case been coming within the purview of S. 145. Now that according to me the case falls within S. 147 and there being no express authority for attachment of the property, it is doubtful if the order of attachment made on 4-10-1975 can be maintained. The only course which seems appropriate in the circumstances of the case is to remand the case to the learned Magistrate to decide if a dispute likely to cause the breach of the peace still exists and whether he should initiate fresh proceedings under S. 147 Cr. P. C as was done in the case of Kunhammad v. Abdul Rehman 1961 (2) Cri LJ 234 (Ker). 17. It therefore seems to me that the order of the learned Magistrate is without jurisdiction and interference is called for in the manner as already stated. P. C as was done in the case of Kunhammad v. Abdul Rehman 1961 (2) Cri LJ 234 (Ker). 17. It therefore seems to me that the order of the learned Magistrate is without jurisdiction and interference is called for in the manner as already stated. The final order including the order of attachment dated 4-10-1975 passed in this cases is hereby set aside and the case is remanded for decision as indicated above. Order accordingly.