JUDGMENT 1. - This petition has been filed under Section 482 Cr. P.C. against the order of the learned Addl. Sessions Judge No. 2, Jodhpur dated 4-6-1980 where by he has maintained the order of the learned Sub-Divisional Magistrate, Jodhpur dated 25-3-1980 by which the attachment of the disputed shop was maintained and the parties were directed to get their respective rights decided by a competent court. 2. The facts necessary to be noticed for the disposal of this petition briefly stated are : that the petitioner Babulal purchased a shop situated in village Bisalpur for a sum of Rs. 6,000/- from non-petitioner No. 1 Gokul Chandra by a registered sale deed dated 8-2-1980 in pursuance of an agreement to sell executed by Gokul Chandra in his favour on 1-8-1979. It is alleged that the possession of the shop was handed over to the petitioner an 8-2-1980. It is further alleged that in the night of 19-2-1980, the non-petitioners broke open the locks of the shop and dispossessed the petitioner. They also tried to be labour him but he ran away to save his life. The matter was immediately reported to the police but no action was taken and, therefore, on 20.2.1980, a complaint was filed under Section 145 Cr. P.C. before the learned S.D.M., Jodhpur, who while drawing the preliminary order on 20.2.1980, held that there is likelihood of the breach of the peace regarding the suit shop and, therefore, he ordered for the attachment of the shop and appointed S.H.O. Dangiabas as a receiver of the suit shop and issued notices to the non-applicants to put up their claims. The application of the applicant was supported by his own affidavit along with an affidavit of Hardan. The non-applicant filed their claims on 29.2.1980 alongwith certain affidavits. The case was then listed for arguments on 12.3.1980. However, the order for the attachment of the suit shop was passed on 25.3.1980. Against this, a revision was filed before the learned Addl. Sessions Judge No. 2, Jodhpur, who by the impugned order dismissed the revision petition. 3. I have heard Mr. N. M. Lodha, learned counsel for the petitioner and Mr. B. Advani, learned counsel for the non-petitioners. I have carefully gone through the record of the case. 4. Against this, a revision was filed before the learned Addl. Sessions Judge No. 2, Jodhpur, who by the impugned order dismissed the revision petition. 3. I have heard Mr. N. M. Lodha, learned counsel for the petitioner and Mr. B. Advani, learned counsel for the non-petitioners. I have carefully gone through the record of the case. 4. In this case, the order of the learned Sub-Divisional Magistrate dated 25.3.1980 cannot be sustained because it is against the provisions of Section 145 (4) Cr. P.C. as also against the provisions of Section 274 Cr. P. C. S. 145(1) Cr. P. C. provides that once the Magistrate takes cognisance and comes to the conclusion that there exits breach of peace, he has to issue a notice to all concerned parties to put up their respective claims. S. 145(4) Cr. P.C. provides that after considering the claims put up by the parties, the learned Magistrate has to provide them an opportunity to lead evidence if they wanted to do so. Affidavits, according to the amended Cr. P. C. not to be considered and after recording the evidence as envisaged by Section 274 Cr. P.C. and after considering the evidence that may be produced on behalf of both the parties and after giving them an opportunity of hearing, the application is to be decided as per the provisions of Section 145 Cr. P. C. In this respect, I may refer to a decision of the Bombay High Court in Smt. Flori Rodrigues V.M.J. Danial Cabral (1979 Cr. L.J. 83) wherein it has been observed as follows : "Under the new Code, a Magistrate cannot dispose of proceedings under Section 145 on the basis of affidavits. It is clear from reading both the provisions of sub-ss. (1) and (4) of Section 145 of the New Code, that the legislature has deliberately done away with the amendment concerning the affidavits which was made by S. 18(a) and (b) of the Criminal Procedure Amendment Act 26 of 1955, thereby dispensing with the affidavits all together and restoring the provisions to the position which existed prior to the amendment of the Code by Act 26 of 1955. Not only that but the Legislature has specifically provided in sub-S. (4) of Section 145 of the New Code that the Court shall receive all such evidence as may be produced by the parties and take such further evidence if any as it thinks necessary." My attention was also drawn to a decision of the Calcutta High Court in Abhimanya v. Nanak Ram 1979 Cr. L.J. 1103 wherein it has been held that evidence under Section 145 Cr. P. C. has to be taken by examining the witnesses and not by putting affidavits and that the affidavits sworn by the witnesses in support of ones own claim and annexed as a part of the written statement cannot be looked into by the learned Magistrate. It has further been held that as per S. 145(4) Cr. P.C. though the choice is left on the parties to adduce evidence, yet reasonable opportunity have to be given to them to produce their witnesses and documents if any. Thus, the evidence in the shape of the affidavits cannot be looked into. 5. Mr. N. M. Lodha, learned counsel for the petitioner has further drawn attention to a decision of this Court in Bhagwat Singh v. Umed Singh (1971 Cr. L.R. Raj. 461) wherein K. D. Sharma, J. (as he then was) has held that the affidavits filed by the parties should be looked into. That case related to the year 1973 when the old Cr. P.C. was in force and, therefore, that decision is applicable to the proceedings that have been initiated before the amendment in the Cr. P.C. and not thereafter. In this case, the learned S.D.M. has decided the case on the basis of the affidavits which was not proper. The learned Addl. Sessions Judge has also not taken into consideration this change made in the law and, therefore, the order dated 25.3.1980 of the learned S.D.M., Jodhpur cannot be sustained. 6. In the result, the petition is allowed and the order dated 25.3.1980 of the learned S.D.M., Jodhpur and the order dated 4.6.1980 passed by the learned Addl. Sessions Judge No. 2, Jodhpur are set aside. The case is sent back to the learned S.D.M., Jodhpur to decide the case a fresh in the light of the observation made herein above. 7. Sessions Judge No. 2, Jodhpur are set aside. The case is sent back to the learned S.D.M., Jodhpur to decide the case a fresh in the light of the observation made herein above. 7. Learned counsel for the petitioner has submitted that certain goods in the shape of bicycles and others were seized at the time of the attachment of the shop. The proceedings under Section 145 Cr.P.C. are not meant to attach the movable property of any person. Mr. Lodha submits that those bicycles belong to the petitioner. If that is so, on an application being made by the petitioner before the learned S.D.M., Jodhpur, the learned S.D.M. Jodhpur will immediately dispose of that application on merits after hearing both the parties. The matter has become old and so, it is expected of the learned S. D.M. to dispose of this matter within six months from today. The parties are directed to appear before the learned S.D.M., Jodhpur on 12.3.1987. Let the record of this case be sent to the learned S.D.M., Jodhpur immediately.Petition Allowed. *******