V. D. GYANI, J. ( 1 ) THIS revision petition is directed against the order dated 8. 7. 83 passed by the Additional Sessions Judge, Shajapur in Criminal Revision No. 66/80 thereby reversing the order dated 7. 8. 80, passed by S. D. M. Shajapur in Criminal Case No. 94/80 under Section 145 Cr. P. C. ( 2 ) THE petitioner claims to be in possession of agricultural land admeasuring 1. 734 Hectare bearing survey No. 1929 and 1932 situate in village Hadlai Kala Teh. Shajapur ever since he was not in possession of the said land in Samwat 2035 (1978-79) by Gajraj Singh and Hemraj Singh 5/0 Dev Singh who later on executed a registered sale deed on 22-12-79 in favour of the petitioner. On 19-3-80 the respondents with a view to dispossess the petitioner of his land ploughed the same. Again on 30- 3-80 when the petitioner went to him with Bhanvarji to reap Chana crop the respondents obstructed and quarreled with him. The matter was reported to police on 1-4-80. On 3-4-80, the petitioner again went to the field for watering the standing crop. But the respondents who were armed with axe and Farsi, and attempted to assault the petitioner threatened him. Again, a report lodged at the police station. With the intervention of the Station Officer, the petitioner could reap his crop, and could also cultivate his land. But the respondents continue to threaten him and prevent him from going to his field. The petitioner therefore moved the S. D. M. On 10-4-80 for action under Section 145 and 146 Cr. P. C. placing all the reports, affidavits and other record before him. According to the police report submitted to the 5dm. 6-5-80 it was reported that there was imminent apprehension of breach of peace. After obtaining this report, the 5dm. passed order under Section 145 (1) Cr. P. C. on 20-5-80. Lad Singh the petitioner again submitted on 21-6-80 his claim supported by affidavit and documents so also the respondent (on 7-7-80 ). ( 3 ) THE respondents case in gist was as co-owner of the land in question he was entitled to possession. The partition amongst brothers has been repudiated by him and claims to be in possession of the land in question. The sale deed executed without his consent is denounced as invalid. ( 3 ) THE respondents case in gist was as co-owner of the land in question he was entitled to possession. The partition amongst brothers has been repudiated by him and claims to be in possession of the land in question. The sale deed executed without his consent is denounced as invalid. He also filed a certified copy of the judgment dated 10-4-78 of the Civil Court Shajapur in C. O. S. No. 215-A/76 in which the brothers are described to be in joint possession. The other two brothers had no right to sell the land. The entries made in the revenue records as regards possession is the result of collusion with the Patwari, they are not admissible in evidence. He has also filed a true copy of the Kisht Bandi entries signed by the Patwari on 28-3-80 showing possession of all the three brothers in the year 1979-80. He filed his own affidavit and also that of Shivnarayan. It is claimed that the agricultural operations were carried on by him above. ( 4 ) ON the facts stated above, the 5dm. passed an order on 7 -8-80 directing that the land in question be attached and the Vasuli Patel of the village be appointed as receiver in respect of the land in dispute. Against the order, a revision was preferred by the respondents and the Addi. Sessions Judge set aside the aforesaid order dated 7-8. 80 passed by the 5dm. on the ground that before invoking Section 146 Cr. P. C. he ought to have held an inquiry as contemplated by Sec. 145 (5) Cr. P. C. The Addi. Sessions Judge was of the view that there was no emergency so as to pass an order u/s. 146 Cr. P. C. This view is based on the ground that the 5dm. passed the order almost three weeks after hearing arguments. ( 5 ) SHRI T. N. Singh learned counsel for the petitioner assailed the revisional courts order on the ground that emergency as found to be existing by the 5dm. should not have been dislodged on the ground that the order was passed three weeks after the hearing of arguments. The petitioner on his own had already moved the 5dm. on 10. 4-80 praying for such a relief. Thereafter, police report was obtained and claims by contesting parties were filed. should not have been dislodged on the ground that the order was passed three weeks after the hearing of arguments. The petitioner on his own had already moved the 5dm. on 10. 4-80 praying for such a relief. Thereafter, police report was obtained and claims by contesting parties were filed. According to the Learned Counsel an order under Section 146 can well be passed without holding an inquiry under Section 145 (4) Cr. P. C. provided of course emergency exists. Shri Saxena for the respondents has supported the order and justified that now after a lapse of almost four years there can be no emergency as such to sustain the S. D. M. s Order. ( 6 ) GOING through the order sheets of the trial court, that the 5dm. was awaiting police report. So far as the petitioner is concerned, he had already for attachment of land and appointment of receiver. (See para 12 of his application dated 10-4- 80 ). On 20-5-80 the 5dm. passed order under Section 145 (1) Cr. P. C. The Order sheet dated 19-5-80 discloses that this order was based on the petitioners application dated 10-4-80 which was further supported by the police report. Now, the foundation of any action under Section 145 Cr. P. C. is a dispute relating to any land and as such dispute likely to cause breach of peace coming to the order of attachment passed under Section 146 (1) Cr. P. C. it is to be seen that it can be made only on the following condition. (a) That there is an order under Sec. 145 (1) an attachment made in the absence of a valid preliminary Order under Subsec. (1) would be invalid. (b) The Magistrate - (i) comes to the decision that none of the parties was then in possession of the property; (ii) is unable to come to any decision as to which of the parties was then in possession; or (iii) considers the case to be one of emergency. While the first two, contingencies, as aforesaid, can arise only after completion of the inquiry under Sec. 145 (4), an order of attachment on the ground of emergency can be made at any time after the making of a preliminary order under Sec. 145 (1 ). While the first two, contingencies, as aforesaid, can arise only after completion of the inquiry under Sec. 145 (4), an order of attachment on the ground of emergency can be made at any time after the making of a preliminary order under Sec. 145 (1 ). ( 7 ) THIS ground has been transferred from the 3rd proviso to old Sec. 145 (4) to Sec. 146 (1) in a new shape. While the two other contingencies mentioned in new Sec. 146 (1) can arise only after the Magistrate has completed his inquiry u/s. 145 (4) he can make an order of attachment on the ground of emergency at any time after the making of a preliminary order u/s. 145 (1) but there should be a finding about the existence of emergency based on material on record. Applying these tests to the order dated 7-8-80 passed by the 5dm. it is clear that having considered all the available material on record and the related circumstances, the Magistrate was satisfied and it may be added rightly so, that there existed such emergency which warranted an order u/s. 146 (1) Cr. P. C. The Addi. Sessions Judge has found one reason to believe the existence of emergency, the reason being the order itself was passed by 5dm. after three weeks of hearing the arguments. The question is can it be said to be a good ground? It is a legal maxim ACTUS CURIAE NEMINEM GRAVABITAN ACT OF THE COURT SHALL PREJUDICE NO MAN, the act of the Court shall prejudice none. In this view of the matter, the impugned order passed by the Addi. Sessions Judge can not be allowed to stand. It is accordingly quashed. The parties may however, if they so desire move the 5dm. under the Proviso to Sub-sec. (1) of Section 146. The revision is allowed, and the impugned order is set aside. Petition allowed. .