This is an application under section 482/401 of the Criminal Procedure Code, for short, ‘the Code’ read with Article 227 of the Constitution of India against the orders dated 30.12.86 and 3.1.87 passed by the learned Additional District Magistrate, Dibrugarh in Case No. 77IM/86 under sections 145/146 of the Code. 2. The petitioner No. 1 is the Karta of the Hindu undivided family owning the property in question at Dibrugarh town, Assam. Chiranjilal Kedia, since deceased, father of the present opp. party was a tenant in respect of the said property. The present petitioner No. 1 as Karta filed an ejectment suit being Title Suit No. 35/78 against the said Chiranjilal in the Court of the learned Assistant District Judge, Dibrugarh. It is alleged that during the pendency of the suit late Chiranjilal with all his heirs shifted to Banaras during the last part of 1984 and settled there permanently. It is further alleged that the elder brother of the present opp. party after the death of their father came to Dibrugarh and after negotiation surrendered the lease of the house in favour of the undivided Hindu family of the present petitioner and the said surrender deed was signed and executed by said elder brother of the present opp. party Binode Kumar on 22.10.86 and possession of the suit premises was also delivered. In view of the said surrender, it is stated that on 4.11.86 the learned Assistant District Judge, Dibrugarh allowed the petition filed by the present petitioner No. 1 for withdrawal of the suit for eviction and accordingly the suit was dismissed for non-prosecution. It is further stated that a petition was filed before the learned Munsiff for allowing the petitioner No. 1 to withdraw the rent deposited and though the eldest brother of the present opp. party filed an objection, the petitioner No. 1 was allowed to withdraw the amount of the rent deposited and the said objection was dismissed for default. 3. On 22.12.86 the present opp. party filed an objection, the petitioner No. 1 was allowed to withdraw the amount of the rent deposited and the said objection was dismissed for default. 3. On 22.12.86 the present opp. party filed a petition before the learned Additional District Magistrate, Dibrugarh for drawing up proceeding under section 145 of the Code in respect of the premises in question and the learned Additional District Magistrate called for a report from the police which was submitted on 26.12.86 and in the said report, it was stated that an Industry was running in the premises in question and the present petitioner No. 4 with hi& family was residing in a part of the premise. However, the learned Additional District Magistrate by an order dated 27.12.86 asked the police to submit the report as per procedure as the police did not submit report in N.F.I.R. form. On 29.12.86 police submitted another report declining to submit a report as required by the learned Additional District Magistrate as the premises in question was in occupation of the present petitioner No. 4 and one Industry was running inside the house. On 30.12.86 one Sri Banwnlal Sarma filed an Affidavit and on the basis of the statement made in the said Affidavit the learned Additional District Magistrate by an order dated 30.12.86 made a preliminary order drawing up proceeding under section 145 of the Code and also attached the disputed house under section 146 (I) of the Code. The learned Additional District Magistrate further restrained the parties from entering into the disputed house till disposal of the case. On 1.1.87 the present petitioner prayed for cancellation of the order of drawing up of the proceeding in question, the police however, could not attach the property as it was in occupation of the present petitioner No. 4 and accordingly the learned trial Court was informed The opp party filed another petition praying for implementation of the order of attachment, but the learned trial Court sought the advice of the learned Govt. Pleader. On 3.1.87 after getting the opinion of the learned Govt. Pleader, the learned trial Court directed the police to implement the order of attachment by evicting persons occupying the disputed house by use of force and also deputed one Executive Magistrate. Hence, the present petition. 4. In the counter filed on behalf of the opp. Pleader. On 3.1.87 after getting the opinion of the learned Govt. Pleader, the learned trial Court directed the police to implement the order of attachment by evicting persons occupying the disputed house by use of force and also deputed one Executive Magistrate. Hence, the present petition. 4. In the counter filed on behalf of the opp. parties it is admitted that the suit was filed for eviction, but, it is denied that they shifted permanently to. Banaras and that any deed of surrender of the lease of the suit property was signed and executed by Binode Kumar Kedia on 22.10. 86 and that possession was delivered. According to the opp. parties they were all along in possession of the suit premises and that they went to Banaras on receipt of the information that their mother, who was living at Banaras after death of their father was seriously ill and left the suit premises in the charge of one Jagadish Agarwalla and some others who were intimately connected with them. It is stated that on 1.11.86 they received a telegram from the said Jagadish Agarwalla that the house in question was taken over by the petitioners and they came to Dibrugarh on 3.11.86 and came to know that on the mid-night of 27.10.86 the petitioner No. 1 with the help of large number of labourers and some police personnel forcibly took over the possession of the suit house by breaking open the door and removing the goods there from. As the opp. parties were forcibly evicted, petition for drawing up the present proceeding was filed. It is submitted that the order of attachment was passed as there was likelihood of breach of peace and the order of attachment was also legally and validly made. It has been alleged that police acted in positive collusion and connivance with the petitioner. 5. In the instant preceding, it is not necessary for me to entering in­to the controversy of the civil case which was dismissed on non prosecu­tion as deed of lease was surrendered as alleged by the petitioners. 6. Mr. It has been alleged that police acted in positive collusion and connivance with the petitioner. 5. In the instant preceding, it is not necessary for me to entering in­to the controversy of the civil case which was dismissed on non prosecu­tion as deed of lease was surrendered as alleged by the petitioners. 6. Mr. Baruah, learned counsel for the petitioners has attacked the two orders namely orders dated 30.12.86 and 3.1.87 on the grounds that the orders were passed without any jurisdiction, that there is no likelihood of any breach of peace as it would appear from the petition filed that the prayer for drawing up the present proceeding is only to recover possession of the suit premises, that the order of attachment passed under section 146 is also without jurisdiction as there was no emergency and that the impugned orders were passed mechanically and without applying judicial mind by the learned Additional District Magistrate. On the other hand Mr. Choudhury, learned counsel for the opp. party submits that in the instant proceeding the manner in which the present opp. party who was a tenant of the present petitioner was thrown out by force illegally is unknown in the judicial history, that there is every likelihood of breach of peace and that the preliminary and the attachment orders were passed validly and legally. 7. Before considering the preliminary order of drawing up proceeding under section 145 of the Code, I shall consider whether the attachment order was legally or validly made. At this stage, it may be appropriate to reproduce sub-section (1) of section 146 of the Code which runs as follows : "146. Power to attach subject of dispute and to appoint a receiver- (1) If the Magistrate at any time after making the order under sub­section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has deter­mined the rights of the parties there to with regard to the person entitled to the possession thereof. Provided that............" 8. Thus the language of section 146(1) of the Code is clear and unambiguous. Provided that............" 8. Thus the language of section 146(1) of the Code is clear and unambiguous. The said sub-section (1) of section 146 of the Code makes it clear that the property can be attached in any of the following three situations namely (i) If there Is emergency to attach the property ; (ii) If the Magistrate decides that none of the parties was in possession on the date of the preliminary order under section 145(1), and (iii) If the Magistrate is unable to satisfy himself as to which of the parties was in possession of the subject of the dispute on the date of preliminary order. In case of emergency the Magistrate can pass an order of attachment without going into merits of the parties regarding possession and the remaining two situations will arise only after the parties have been given opportunity of leading evidence and of being heard. That means that the attachment can be made only at time of making the final order of the proceeding under section 145 of the Code. This view was also expressed by Delhi High Court in Anand Ram Nanda, Petitioner vs. States, 1986 Cri. L.J. 2008 to which I respectfully agree. 9. In M.A. Rahman, Petitioner vs. State of Andhra Pradesh and another 1981 Cri. L. J. 1291, Andhra Pradesh High Court observed that it is always desirable if the Magistrate mentions in his order the grounds for attachment. Otherwise, it will lead to the argument that he passed the order without any of the conditions mentioned in the existing section. Of course in that case (he order of attachment was upheld in view of the police report wherein it was clearly stated that there was like­lihood of breach of peace and public tranquility and the situation was uncontrollable even after posting of police picket. 10. In the instant proceeding there is no dispute that the present petitioner is in possession of the suit premises and as such conductions No. 2 and 3 of section 146 (1) of the Code are not attracted. In the instant proceeding only question is whether there was emergency to attach the property. The learned trial Court stated as follows : "Since it is a case of emergent nature, so I order for attachment of the disputed house u/s 146 (I) Cr. In the instant proceeding only question is whether there was emergency to attach the property. The learned trial Court stated as follows : "Since it is a case of emergent nature, so I order for attachment of the disputed house u/s 146 (I) Cr. P.C. and restrain both the parties from entering the disputed house till disposed of this case." As observed by Andhra Pradesh High Court in M A Rahaman (supra), to which I agree with respect it is desirable that the Magistrate should record his grounds for attachment in his order which is lacking in the instant proceeding. On the facts of the case as stated above, police submitted two reports dated 26.12.86 (Annenxre-B to the petition) and dated 29.12.86 (Annexure-D to the petition) prior to the passing of the order of attachment and in the said police reports there was not even a whisper that the case was an emergent nature in fact the police report did not at all indicate that there was any likelihood of breach of peace. In the police report, it is clearly stated that the petiti­oner No. 4 is residing in the suit premises and an Industry is also running there. Mr. Choudhury, learned counsel for the opp. party has drawn my attention to the Affidavit filed by one Banawarilal Sharma dated 30.12.86 on behalf of the opp. party (Annexure-E lo the petition) wherein para 6 of the Affidavit, it is stated that "situation is very hot and there is every likelihood of serious of public peace over the issue unless immediate steps are taken as per law. This is my humble submission." Mr. Choudhury submits that this statement is sufficient for the learned trial Court to attach the property. 1 am unable to accept the contention of Mr. Choudhury as this affidavit was filed after about 8 days of filing the first petition for drawing up the proceeding under section 145 of the Code by the opp party. That apart, the above statement is only a submission made by said Banwarilal. In the petition dated 22.12.86 filed by the opp.party (Annexure-A to the petition) there is not a single statement regarding breach of peace and in para 5 of the petition it was categorically stated by the opp.party that the said petition was filed ‘for the purpose of restoration of the possession on the house-cum-shop proceeding u/s 145 Cr. In the petition dated 22.12.86 filed by the opp.party (Annexure-A to the petition) there is not a single statement regarding breach of peace and in para 5 of the petition it was categorically stated by the opp.party that the said petition was filed ‘for the purpose of restoration of the possession on the house-cum-shop proceeding u/s 145 Cr. P.C. is essential." 11. Neither in the order of attachment dated 30.10.86 nor from any documents from record, I find that there was any material to show that the attachment of the property was necessary to control any emergency. By the order dated 3.1.87 the learned trial Court directed the Officer-in-charge, Dibrugarh P.S. to execute the attachment order by evicting the persons who are in occupation of the disputed house by using force, if necessary, and the Seamed trial Court also deputed one Executive Magistrate. In other words, by the aforesaid order, the learned trial Court gave final relief to the opp. party for which the present proceeding was drawn up. On this account also, the attachment order cannot stand. 12. Mr. Choudhury, learned counsel for the opp. party submits that if the opp-party tries to occupy the disputed property, there would be breach of peace and as such the attachment order was necessary. It is admitted that the opp party was evicted from the suit premises and as such the present proceeding was initiated on his prayer. There is no justification for the opp party to try to occupy the suit premises as he has already approached the learned trial Court of an appropriate order and any action by the opp. party to occupy the suit premises by force will definitely be illegal So, I do not find any force in the contention of Mr. Choudhury. 13. Now, let me consider the contention of Mr. Baruah regarding quashing of the preliminary order dated 30.12.86. In support of his contention, Mr. Baruah has cited catena of decisions. 14. Main contention as I could gather, are that the impugned order was passed mechan;ca!ly without application of mind and that there is no material to pass the said order. Mr. Baruah has also contended that the order is bad as the learned trial Court has not stated the grounds for his satisfaction regarding likelihood of breach of peace. 15. 14. Main contention as I could gather, are that the impugned order was passed mechan;ca!ly without application of mind and that there is no material to pass the said order. Mr. Baruah has also contended that the order is bad as the learned trial Court has not stated the grounds for his satisfaction regarding likelihood of breach of peace. 15. Admittedly, the impugned order was not passed on the basis of any police report or on the petition dated 22.12.86 filed by the opp-party. Subsequently, an affidavit was filed, as stated above by one Banwarilal Sharma on 30.12.86 and thereafter the impugned order was passed. In the said affidavit it was stated ‘the situation is very hot and there is every likelihood of serious breach of peace over the issue’. The learned trial Court recorded as follows : "I am satisfied that there is every likelihood of breach of peace between the parties regarding the occupation of the disputed house ......" According to Mr. Baruah, this satisfaction is only purported satisfaction and as such it is bad and that apart, no grounds have been stated in the order. In Durga Prasad Goenka, Petitioner vs. Rameswar Goenka Opposite Party, A.LR. 1959. Assam, page-54, a Division Bench of this Court held that the Magistrate must be satisfied from a police report or other wise that a dispute likely to cause breach of peace exists concerning any land or water or the boundaries thereof and if he so satisfied, he should make an order in writing, stating the grounds of his being so satisfied. Though the Court found that the learned trial Court committed irregularities in initiating the proceeding, in absence of any basis for a finding that a failure of justice has occurred, the court refused to interfere with the preliminary order. 16. In view of the above decision of a Division Bench of this Court, I need not consider the decisions of other High Courts as this decision is binding for me. As I do not find that any in­justice was caused to the petitioner by not stating the grounds of the satisfaction by the learned trial court, I do not propose to disturb the impugned order dated 30.12.86 by which the learned Additional District Magistrate drew up the present proceeding u/s 148 of the Code. As I do not find that any in­justice was caused to the petitioner by not stating the grounds of the satisfaction by the learned trial court, I do not propose to disturb the impugned order dated 30.12.86 by which the learned Additional District Magistrate drew up the present proceeding u/s 148 of the Code. As the proceedings has already been drawn up parties have appeared, this court should not interfere with the process at this stage and the learned trial Court should be allowed to decide the dispute according to law. 17. Another contention of Mr. Baruah is that the learned trial Court did not consider the petition dated 1.1.87 filed by the present petiti­oner, which according to Mr. Baruah, relying on a decision of this Court in Kongengbam Ibopishak Singh, Petitioner vs. Ahongsangbam Sanakhomba Singh and others, Respondents. 1986. Cri. L J. 1110. the Court is duty bound to examine the said petition. The contention of Mr. Baruah has cosiderahle force but this petition was filed after the preli­minary order drawn up but before the order dated 3.1.87 for execution of the order of attachment was passed. It my opinion, how the Court should consider this petition An attempt has been made to show that in a civil dispute is pending the present proceeding cannot be drawn up in view of the decision of the Supreme Court in Ram Sumer Purl Mahant, Appellant vs. State of U. P. and others, Respondents, 1985 Cri L.J. 752-AIR1986 Supreme Court 472. From the records available in this proceeding, it is not at all clear regarding the fate of the civil suit for ejectment which was dismissed for non prosecution. According to Mr. Choudhury, learned counsel for the opp. party the matter is being agitated before this Court, However, no documents have been filed in support of his contention. Be that as it may, the parties can agitate this matter before the learned trial Court and the learned Court shall decide the point keeping in view the law laid down by the Supreme Court. 18. As I have found no defect in the preliminary order of drawing up the present proceeding under section 145 of the .Code, it is necessary to remit back the matter to the learned Court to decide the dispute according to law. 18. As I have found no defect in the preliminary order of drawing up the present proceeding under section 145 of the .Code, it is necessary to remit back the matter to the learned Court to decide the dispute according to law. In deciding the dispute, Magistrate shall decide whether there was any likelihood of breach of peace concerning the disputed property in terms of sub-section (5) of section 145 of the Code. The learned trial Court shall also decide whether the opp. party has been forcibly and wrongfully dispossessed from the suit, property within 2 months next before the date as provided in the proviso to sub-section (4) of section 145 Cr. P.C. 19. I find that the Opp. Party has made allegations against the police. On the other hand, the learned trial Court drew up the procee­ding though in the police reports there was no statement regarding apprehension of breach of peace. The principle that justice should not only be done, but should manifestly and undoubtedly be s en to be done is a basic principle in any judicial proceeding. I therefore, think it fit and proper that the case should be sent to learned District Magistrate, Dibrugarh, who may himself try the case or transfer it to some other competent Court. I make it clear that this direction is not a reflection of the learned trial Court and it has been issued keeping in view the above principle. 20. In the result I hold that the order of attachment dated 30.12.86 was not legally and validly made and as such it is set aside and conse­quently the order dated 3.1.R7 is also set aside. The preliminary order issued under section 145 of the Code stands. Let the case records be gent to the learned District Magistrate, Dibrugarh who may himself try the proceeding or may transfer it to any other competent court. With the above direction, the petition is disposed of.