JUDGMENT - B.G. KOLSE-PATIL, J.:---This is an application challenging the order dated April 3, 1984 of the Metropolitan Magistrate, Borivli passed under section 146 of the Criminal Procedure Code in respect of Flat No. 20 in Siddhi Vinayak Co-operative Housing Society at Malad. Respondent No. 2 claimed that he was in possession of the said flat from January 5, 1984 till March 25, 1984 when he was dispossessed by the petitioner and respondent Nos. 3 and 4. The petitioner is the divorced wife of respondent No. 5. Respondents Nos. 3 and 4 are the parents of respondent No. 5. The flat in dispute is owned by respondent No. 5. According to respondent No. 2, he was put in the possession of the flat on 5-1-1984 by respondent No. 5 in pursuance of an agreement dated 15-10-1983. However, the petitioner, respondent No. 3 and respondent No. 4 dispossessed him on 25-3-1984. He, therefore, preferred applications under sections 145(1) and 146(1) of the Criminal Procedure Code before the Metropolitan Magistrate, Borivli on March 26, 1984 making the petitioner and respondents Nos. 3 and 4 as parties to the proceedings. March 30, 1984 was the date fixed for their appearance. Incidentally March 30, 1984 was also the date fixed by the City Civil Court in the matrimonial petition for divorce between the petitioner and respondent No. 5 and the matter was kept for hearing at 2.45 p.m. on that day. Therefore, on that date, the petitioner and respondent No. 4 went to Metropolitan Magistrate's Court at Borivli at 11 a.m. and engaged Advocates Shri Gavali and Shri Singh and instructed them to seek an adjournment for filing their say. Both the applications under sections 145(1) and 146(1) were given the same number and on enquiry, Advocate Gavali informed the petitioner that the matter was adjourned to April 4, 1984. However, it appears that the application under section 146(1) was actually treated as a separate application by the Magistrate and adjourned to April 3, 1984 without their knowing it and on that day the order of sealing the flat was passed by him. On April 4, 1984 this petitioner, respondents Nos. 3 and 4 appeared before the Magistrate and learnt that the ex parte order was passed and, therefore applied for unsealing the premises. Against the order rejecting the said application, the petitioner has approached this Court. 2. Mr. On April 4, 1984 this petitioner, respondents Nos. 3 and 4 appeared before the Magistrate and learnt that the ex parte order was passed and, therefore applied for unsealing the premises. Against the order rejecting the said application, the petitioner has approached this Court. 2. Mr. Gumaste, learned Counsel for the petitioner submitted that the impugned order is bad in law and is also unjustified. He attacked the agreement dated 25-10-1983 executed by respondent No. 5 in favour of respondent No. 2 under which respondent No. 2 claimed to be in possession of the flat since 5-1-1984. Mr. Gumaste submitted that the agreement shows an unconscionable bargain in favour of respondent No. 2. The agreement shows that it was made on 25-10-1983 and a cheque of Rs. 35,000/- dated 5-1-1984 was given on that day. The Bank Account of respondent No. 2 shows that he did not have sufficient funds to cover the cheque on 5-1-1984. A letter sent by the bank to the learned Magistrate along with Bank Account of respondent No. 2, clearly mentions that Cheques No. 187969 dated 5-1-1984 issued by respondent No. 2, which was sought to be encashed on 19-3-1984, was not cleared on account of difference between the words and the figure of the amount of the cheque. The Bank Account also shows that on 19-3-1984 the respondent No. 2 deposited Rs. 35,000/- and another Cheque Bearing No. 187970, obviously next in series, was encashed. Both the cheques were of Rs. 35,000/- each and dated 5-1-1984. It, therefore, follows that the Cheque No. 187970 must have been issued after the first Cheque rebounded i.e. after 19-3-1984. Even though the cheque No. 187970 was issued after 19-3-1984, very surprisingly we find that the said Cheque No. i.e. 187970 has been mentioned in the endorsement, purported to have been made on 5-1-1984, below agreement at Exh. J. Therefore, according to Mr. Gumaste the endorsement made on the agreement is not only ante-dated but false, and consequently, the story of respondent No. 2 having been put in possession of the flat on 5-1-1984 is false. Attacking the letter produced by respondent No. 2, dated 28-3-1984 purported to have been written by respondent No. 5, to the Secretary of the Co-operative Society requesting him to transfer the flat and share certificates in the name of respondent No. 2 Mr. Attacking the letter produced by respondent No. 2, dated 28-3-1984 purported to have been written by respondent No. 5, to the Secretary of the Co-operative Society requesting him to transfer the flat and share certificates in the name of respondent No. 2 Mr. Gumaste submitted that under the agreement, the flat was to be transferred within a period of 10 years for a total price of Rs. 1,40,000/-. According to respondent No. 2, he had paid Rs. 35,000/- in cash at the time of the agreement and Rs. 35,000/- by a cheque, making together Rs. 70,000/-. Therefore, the question of transferring the flat on 28-3-1984 was out of question and hence the letter written by respondent No. 5 to the Secretary of the Co-operative Society cannot be relied upon. Mr. Gumaste further submitted that the area of the flat is 560 sq. ft. situate at Malad which would not cost less than Rs. 3 lakhs, on the date of the agreement. He also attacked the mode of the deferred payment which is Rs. 70,000/- at the time of taking the possession and Rs. 70,000/- 10 years thereafter. He, therefore, submitted that this agreement has been executed with the ulterior motive to defeat the rights of the petitioner in the matrimonial petition. In pursuance of the agreement, respondent No. 2 was to pay Rs. 250/- per month to respondent No. 5, out of which respondent No. 5 was under an obligation to pay Rs. 140/- to the Society towards the maintenance charges. To sum up, according to Mr. Gumaste, respondent No. 2 was never put in possession of the disputed flat. He also invited my attention to the fact that no affidavit of the neighbours or of the independent persons to prove the alleged possession or dispossession of respondent No. 2 have been filed in the proceedings. Neither the agreement nor any document was produced in the proceedings till the 19th April, 1984 when the petitioner preferred an application in the proceedings calling upon respondent No. 2 to produce the documents. Both the applications were posted for hearing on the 4th April, 1984, according to the affidavits of Advocates Gavali and Singh. Even then the learned Magistrate passed the order on the 3rd April, 1984 directing the sealing of the flat which order was executed late in the evening under a panchanama on the same day. Both the applications were posted for hearing on the 4th April, 1984, according to the affidavits of Advocates Gavali and Singh. Even then the learned Magistrate passed the order on the 3rd April, 1984 directing the sealing of the flat which order was executed late in the evening under a panchanama on the same day. According to him not a single article belonging to respondent No. 2 was found either in the disputed flat or outside the premises. 3. Mr. Deodhar, the learned Counsel for respondent No. 2 on the other hand submitted that the petitioner has no locus standi to pursue the present application as admittedly the petitioner is divorcee since 15-9-1984. He further submitted that the petitioner had categorically given her address as Flat No. 9, 2nd floor. Transval Terrace Corner of Grant Road, Bombay - 8 in the caption of the Marriage Petition, in the verification of the pleadings and in the body of the plaint Exh. 7 and 8. He, therefore, submitted that she has made a deliberate false statement on oath. He vehemently supported the agreement dated 25-10-1983 executed by respondent No. 5 in favour of respondent No. 2. He says that as no household article were mentioned in the panchanama, it falsifies the case of the petitioner and respondent Nos. 3 and 4 that they were staying in the disputed flat on 25-3-1984. 4. A very short question which arises for my consideration is whether the Magistrate was justified in passing the order directing the sealing of the flat and as to who out of the rival claimants was in possession of the same. 5. As both the parties claimed to be in possession of the disputed flat on March 26, 1984, the date of the filing of the proceedings, a Commissioner was appointed with the consent of both the parties to take and inventory of the articles in the disputed flat. My intention in appointing the Commissioner was to verify the existence of the articles of daily use if any lying in the disputed flat. The Commissioner submitted his report on October 31, 1985 and the same is on record. 6. The articles found in the flat unerringly belong to the members of the petitioner's family. Even respondent No. 2 could not dispute the said fact. These articles include those of daily consumption such as wheat, rice, vegetables etc. The Commissioner submitted his report on October 31, 1985 and the same is on record. 6. The articles found in the flat unerringly belong to the members of the petitioner's family. Even respondent No. 2 could not dispute the said fact. These articles include those of daily consumption such as wheat, rice, vegetables etc. However, after getting the report of the Commissioner, he made certain allegations by filing an affidavit to the effect that the petitioner and respondents Nos. 3 to 5 in collusion with the police might have planted the articles in question after 3-4-1984 or might have placed these articles there between 25-3-1984 and 3-4-1984. On the contrary the affidavits of four neighbours supported the case of the petitioner that she herself and her family members were residing in the disputed flat all along. Apart from the same, there is an important piece of evidence namely affidavit of Shri Thakur who served the summons on respondent No. 5 at the disputed flat on 31-3-1984. This shows that respondent No. 2 was never put in possession of the flat. It is also very clear from the finding of the household articles of daily use, some articles bearing identification marks of the petitioner and respondents Nos. 3 to 5, that they were in possession of the disputed flat even before 25-3-1984 and after that date till 3-4-1984. The panchanama reveals that respondent No. 4 was present in the flat when respondent No. 2 went to execute the order dated 3rd April, 1984 of the learned Magistrate. Admittedly the said panchanama was in respect of the sealing of the flat and hence all the house hold articles lying inside the flat might not have been mentioned in the said panchanama. I am not inclined to accept the arguments of Mr. Deodhar regarding the collusion between the petitioner, respondents Nos. 3 to 5 and the police for planting the articles in the disputed premises. The daily diary of the petitioner found in the flat and written upto 3rd April, 1984 and several other household articles found there are suggestive of the fact that the disputed flat was occupied by the petitioner and respondents Nos. 3 and 4, though the marriage-petition was pending between the petitioner and respondent No. 5 in the City Civil Court. Mr. 3 and 4, though the marriage-petition was pending between the petitioner and respondent No. 5 in the City Civil Court. Mr. Deodhar, contended that the petitioner had given a different address in the marriage petition and therefore, he wanted me to draw an inference that she was not in possession of the flat. The said contention cannot be accepted for the simple reason that the several articles bearing the name of the petitioner were found by the Commissioner as has been stated in the report. 7. As against the abovesaid position, respondent No. 2 had never made out the case, any time, that he had his household articles in the disputed flat. A stray allegation that the petitioner and respondents Nos. 3 and 4 had thrown his belongings out of the flat being unsupported by any independent person, cannot be believed. Respondent No. 2 did not care to bring the police and to drew a panchanama of his articles if any. Hence I am not inclined to accept his allegation that he was dispossessed by the petitioner and respondents Nos. 3 and 4. If it is the case of respondent No. 2 that he was in the possession of the flat from 5-1-1984 upto 25-3-1984, he could have proved his possession by documentary evidence as well as by filing affidavits of his neighbours. I am also in agreement with Mr. Gumaste that the endorsement on the agreement dated 25-10-1983 itself, ante-dated and the Cheque No. 187970 issued by respondent No. 2 must have been issued by him on or after 19-3-1984 when the first cheque Bearing No. 187969 was dishonoured. Therefore, the endorsement below the agreement is ante-dated and consequently it does not prove the delivery of possession of the flat to respondent No. 2 on 5-1-1984. 8. Thus I am of the view that the petitioner and her family members all along possessed the disputed flat and respondent No. 2 tried to have recourse to the criminal proceeding by taking undue advantage of the so called agreement between himself and respondent No. 5. 9. Moreover the order of the learned Magistrate fails to mention that he was satisfied that the case was that of an emergency requiring him to issue direction to seal the flat. 9. Moreover the order of the learned Magistrate fails to mention that he was satisfied that the case was that of an emergency requiring him to issue direction to seal the flat. In my opinion, the order under section 146(1) of the Criminal Procedure Code cannot be passed in a mechanical manner without applying the mind as to whether there exist an emergency or not. It must be clearly borne out from the order of the Magistrate, even if he passes a composite order that he was satisfied that the conditions for issuing the preliminary order under section 145(1) and for issuing the order under section 146(1) existed. An order of attachment under section 146(1) being in the nature of an act of confiscation, the Magistrate cannot make use of that section except on a full inquiry and in exceptional cases. 10. I, therefore, allow this application and quash the order dated 3rd April, 1984 sealing the disputed flat and also the entire proceedings under section 145 pending before the learned Magistrate. The Police Inspector of Malad Police Station is hereby directed to hand-over the possession of the disputed premises to the petitioner and respondents Nos. 3 to 5. The petitioner and respondents Nos. 3 to 5 are restrained from transferring, alienating or creating any charge on the flat till the rights of respondent No. 2 under the agreement dated 25-10-1983 are decided by the Civil Court of a competent jurisdiction, it respondent No. 2 files a Civil Suit within the period of limitation. I am also making it clear that observations made in this judgment in respect of the agreement in question are made only for the purpose of this proceeding and will not affect the merits of the Civil Suit if any, is filed. 11. Mr. Deodhar submitted that the operation of this order be stayed for six weeks. I do not find any merit in this request. I am of the opinion that the petitioner and respondents Nos. 3 and 4 were in possession of the flat on the date of the sealing. Justice demands that they should be restored to their original position. Respondent No. 2 is also not restrained from getting his rights, if any, proved in the Civil Suit. Hence, the application for stay is rejected. 12. The petitioner will deposit Rs. 250/- as additional expenses of the Commissioner. 13. Justice demands that they should be restored to their original position. Respondent No. 2 is also not restrained from getting his rights, if any, proved in the Civil Suit. Hence, the application for stay is rejected. 12. The petitioner will deposit Rs. 250/- as additional expenses of the Commissioner. 13. The Commissioner is allowed to withdraw the entire amount deposited by the parties towards the expenses of the Commissioner. Application allowed. -----