JUDGMENT 1. - As both the revision petitions arise out of the same proceedings under section 145 Cr. P.C., they are being disposed of by this common order. 2. The dispute relates to a shop situated in Shivanchi Gate Sindhion-ka-Mohalla, Jodhpur. Ganga Bishan, non-petitioner filed an application under section 145 Cr. P.C. in the Court of City Magistrate, Jodbhur on March 23, 1981 wherein it was mentioned that the shop in dispute along with three more shops was purchased by his ancestors in the year 1955 under a registered sale deed but there was some dispute in between the members of the Hindu Undivided Family and therefore, the shop in dispute was lying vacant and the lock of Gangabishan was placed thereon. The other three shops were on rent with the tenants. According to Gangabishan prior to March 19, 1981 he was in possession of the disputed shop. But on March 19, 1981 at about 9 p.m. after breaking the lock which had been placed by Gangabishan on the shop, Ghisukhan started making additions and alterations in the shop. No sooner Gangabishan received information, he along with his son reached the spot and asked Ghisukhan as to why he had broken the lock and was making additions and alterations: Ghisukhan thereupon was bent on creating trouble and disturbing peace. The learned Magistrate on being satisfied that a dispute is likely to cause breach of peace relating to the aforesaid shop made an order in writing stating the grounds of being so satisfied and required the parties concerned vis., Ghisukhan and Gangabishan to attend his court in person or by pleader and to put in written statements of their respective claims as to the fact of actual possession of the shop in dispute. Treating the case as one of emergency on the application of Gangabishan moved under section 146 (1) Cr. P.C. the learned City Magistrate attached the subject of dispute for a period of two days i.e. upto March 25, 1981. The order of attachment was extended as the learned Advocate for Ghisukhan appeared on 25-3-81 and sought time. Ultimately the City Magistrate under his order 9, 1981 attached the shop in dispute i.e. the attachment order was confirmed. It is against that order that the revision petition No. 159/81 was preferred. The order of attachment was extended as the learned Advocate for Ghisukhan appeared on 25-3-81 and sought time. Ultimately the City Magistrate under his order 9, 1981 attached the shop in dispute i.e. the attachment order was confirmed. It is against that order that the revision petition No. 159/81 was preferred. The other revision petition No. 150/81 was preferred against that part of the older of the learned executive magistrate under which he has directed parties to get their respective rights decided from a competent civil court. 3. I will first lake up the revision of Ghisukhan which has been preferred against the order of attachment dated April 9, 1981. The contention of the learned Advocate for Ghisukhan is that the learned Magistrate from the very begging has proceeded in a manner not warranted by law and that from the material on record no case of emergency as to warrant attachment of the subject of dispute under sub-section (1) of section 146 Cr. P.C. was made out. An order of attachment of the subject of dispute under sub-section (1) of section 146 Cr. P.C. can only be made by a Magistrate in three contingencies viz., (1) If he considers the case to be one of emergency (2) If he finally decides after holding and enquiry under sub-section (4) of section 145 Cr. P. C. that none of the parties was in such possession as is referred to in section 145 and (3) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute, which again can only be decided after enquiry under sub-section (4) of section 145 Cr. P.C. We are presently concerned with the contingency referred to at No. 1 above and have to see whether there was material on record on which the learned Magistrate could be of the opinion that the case was of an emergency warranting attachment of the subject of dispute. A reading of sub-section (i) of section 146 Cr. P.C. will make it clear that it vests a discretion in the Magistrate to decide as to whether the case is one of emergency warranting attachment of subject of dispute. Whenever a discretion is conferred by statute on a judicial of quasi judicial authority, it is always understood that the said authority should exercise the discretion judicially and not arbitrarily. P.C. will make it clear that it vests a discretion in the Magistrate to decide as to whether the case is one of emergency warranting attachment of subject of dispute. Whenever a discretion is conferred by statute on a judicial of quasi judicial authority, it is always understood that the said authority should exercise the discretion judicially and not arbitrarily. If the case is such that there is absolutely no material before the Magistrate on which existence of emergency could be shown, and if still an order of attachment has been passed by the learned Magistrate then it will be a fit case for interference by this Court in exercise of its revisional powers. Some how if there is some material , before the Magistrate and on the basis of such material, the Magistrate considers the case as one of emergency and attachis the subject of dispute, then a court of revision will not interfere in the discretion so exercised by the Magistrate. It will be profitable to make a reference to Tej Singh and another v. Ramla (ILR 1953 (III) Rajasthan, page 36) , a Division Bench decision of this Court. 4. The limited question which now remains is as to whether there was some material before the learned Magistrate on which the learned Magistrate could have attached the subject of dispute on the ground that there was such an emergency so as to warrant attachment of the subject of dispute. We are not concerned presently with the title of the shop in dispute, though as per the case of Gangabishan the shop along with three other shops was purchased under a registered sale deed in the year 1955 and as per Ghisukhan he is the owner of the shop from the times of his father. There is no provision under sub-section (1) of section 146 Cr. P.C. under which an interim order can be made but there is no prohibition either and in a case the court fails that the final order of attachment should only be passed after hearing both the sides and it considers the cases as one of emergency it can still make an interim attachment of the subject of dispute, the purpose of which is to prevent immediate breach of peace. In the instant case, the learned Magistrate after having made a preliminary order under sub-section (1) of section 145 Cr. In the instant case, the learned Magistrate after having made a preliminary order under sub-section (1) of section 145 Cr. P. C. initially attached the subject of dispute only for a period of two days, extended it after the advocate appeared and sought time to file reply and after perusing the affidavits, the application under section 146 Cr. P. C. and the reply of Ghisukhan finally attached the subject of dispute under sub-section (1) of section 146 Criminal Procedure Code , as he felt that the case was still of one of emergency warranting attachment of the subject of dispute. No doubt as per the allegations in the application under section 145 Cr. P.C., Gangabishan is said to have been dispossessed from the shop in dispute at about 9 p.m, On march 19, 1981, but it is also mentioned in the application under section 145 Cr. P.C. that he (Ghisukhan) was making additions and alterations and when Gangabishan and his son asked him not to do so, he was bent on quarrelling. There is also material on record that a report in the police station was lodged on the same day and in order to keep peace the police personnel were deputed near about the shop in dispute. On March 23, 1981, an application under section 145 Cr. P. C. was filed as the courts were closed for Holi for 20th to 22nd of March, 1981. It appears that when the learned Magistrate heard the arguments and pronounced his final order of attachment on April 9, 1981, tempers were high and a scene was also created in the court in such a manner that Gangabishan had to go for shelter on the has of the Presiding Officer. Taking all the circumstances into consideration, the learned Magistrate thought it is a fit case in which the subject of dispute should be attached. It does not appear to me such a case that the order of attachment on the ground of emergency was passed arbitrarily and not on material. No interference in the discretion exercised by the learned Magistrate is called for. It does not appear to me such a case that the order of attachment on the ground of emergency was passed arbitrarily and not on material. No interference in the discretion exercised by the learned Magistrate is called for. Even if one of the parties is in possession of the subject of dispute, if the Magistrate is satisfied that a dispute involving breach of peace is likely to arise and there is a state of emergency, he has powers to attach the subject of dispute vide Tej Singhs case (Supra). I, therefore, do not find a case for interference so far as the order of attachment is concerned and hereby dismiss the revision petition No. 150 of 1981 (Ghisukhan v. Gangh Bishan). 5. Now I will take up the Revision petition of Gangabishan. The learned Magistrate perhaps was under an impression that in view of the law laid down by two learned single Judges of this Court once the subject of dispute is attached, he has no jurisdiction to make an enquiry under subsection (4) of section 145 Cr.P.C, so far as the right to possess the subject of dispute is concerned. The law is now settled that notwithstanding that the subject of dispute is attached under sub-section (1) of section 146 and or a Receiver is appointed the Magistrate is bound to make an enquiry under subsection (4) of section 145 Cr.P.C. with regard to the right of any parties to possess the subject of dispute and conclude the case. Therefore, the last part of the order of the Magistrate cannot be upheld. The revision petition No. 159 of 1981 is, therefore, allowed and that part of the order of the Magistrate is set aside and so he is directed to proceed with the enquiry under subsection (4) of section 145 Cr.P.C. in accordance with law in the light of the observations made above.Revision Partly allowed. *******