J UDGMENT : SHAMIMA JAHAN, J. 1. Heard Mr. R. Bora, learned counsel for the petitioner. Also heard Mr. J. Ahmed, learned counsel for the respondent No. 3 and Mr. P. Borthakur, learned Addl. Public Prosecutor for the State respondent. 2. This is an application preferred under Section 482 of the Cr.PC, 1973 for quashing of the Order dated 26.04.2024 passed by the Sub-Divisional Magistrate, Bilasipara in Misc. Case No. 138/2023, by which it was directed that the scheduled land may be attached and the Officer-in-charge of Bilasipara Police Station to take immediate possession of the scheduled land with the further direction that no parties would do any activity in the said scheduled land. 3. The fact of the instant case is that on 06.06.1998, the father of the petitioner and the father of respondent No. 3 had exchanged their land by executing an agreement between them and that since then, the petitioner and heirs were alleged to be in absolute possession of the said land, i.e., land covered by Dag No. 296 Patta No. 28 and the land is of 3 Bigha 1 Katha 5 Lechas. It is also the case of the petitioner that his father, Rahmat Ali got the land mutated in his name. Allegedly aggrieved by the said mutation, respondent No. 3 filed an application before the Assistant Settlement Officer for cancellation of the mutation and that the hearing was fixed on 11.05.2022. The said case was however transferred to the Settlement Officer, who called for a report from the Circle Officer, Athani Revenue Circle and that the report was furnished stating inter alia that the petitioner and his brother Jasmat Ali was possessing the land and was cultivating. In view of the said report, the Settlement Officer vide Order dated 20.01.2024 directed the parties to approach the Civil Court and disposed of the matter on the ground that the land was exchanged between the father of the petitioner and the father of the respondent No. 3. 4. It is the case of the petitioner that during pendency of the said application before the Settlement Officer, the respondent No. 3 filed a complaint before the learned Executive Magistrate for drawing of a proceeding under Section 107 of the Cr.PC and the learned Executive Magistrate vide Order dated 20.11.2023 ordered the parties to approach the Civil Court and to execute a bond of Rs. 1,000/- under Section 107 of the Cr.PC and disposed of the case. 5. The respondent No. 3 thereafter filed a complaint before the Sub- Divisional Magistrate alleging that there is breach of peace and tranquility with regard to the said land. The case was transferred to the Executive Magistrate and on the possibility of breach of peace and tranquility, the learned Executive Magistrate drew up a proceeding under Section 107 of Cr.PC and issued notices and the next date was fixed on 16.02.2024. However, before the said next date, on 08.02.2024, the learned Executive Magistrate directed both the parties to execute a bond of Rs. 5,000/- for 1 (one) year for keeping peace and tranquility in the locality and that on 16.02.2024, on the basis of the order passed by the Settlement Officer as mentioned above, directed the parties to approach the Civil Court and the case was disposed of. 6. Thereafter, on a complaint being filed by the respondent No. 3, a report was again called for from the In-charge of Police Outpost regarding the dispute over the said plot of land and that the report was furnished that the petitioner had forcibly cultivated paddy on the disputed land. The Sub-Divisional Magistrate, Bilasipara, on the possibility of breach of peace and tranquility and in exercise of the powers vested under Section 146 (1) of Cr.PC, ordered that the disputed land be attached. By the said order, it was further directed that the Officer-in-charge of the Bilasipara Police Station to take immediate possession of the attached land and to take further necessary action on the breach of the above mentioned bond. It was also directed that the parties involved in the dispute are ordered to refrain from any activity on the attached land until further order. This is the order that the petitioner has challenged by filing the instant petition. 7. The respondent No. 2 had filed an additional affidavit in the instant proceeding stating inter alia that he had filed a Title Suit and has also prayed for ad-interim injunction and by filing another additional affidavit, the respondent No. 3 had stated that although the land was exchanged between the parties by the father of the petitioner and the respondent No. 3, but respondent No. 3 had never taken possession of the said exchanged land and that the petitioner is in forceful possession of both the lands. 8. Mr. 8. Mr. R. Bora, learned counsel for the petitioner submits that under Section 146 of the Cr.PC, it is provided that if a Magistrate after making an order under Section 145(1) of the Cr.PC considers the case to be one of emergency or if he decides that none of the parties are in possession or is unable to satisfy as to which of the party are in possession of the disputed land, he may attach the said land until the competent Court determines the rights of the parties. He submits that in the said impugned Order dated 26.04.2024, the learned Court had neither reach the finding that the case is of an emergency or that none of the parties are in possession or that the Court is unable to know as to which of the party are in possession and as such, the order is bad. He submits that the stipulation in the said Order dated 26.04.2024 that the petitioner had forcibly cultivated paddy on the disputed land show that the petitioner is in possession thereof and in such a case, no order under Section 146 (1) of Cr.PC could have been passed. 9. He further submitted that under Section 145 of Cr.PC, if an Executive Magistrate is satisfied from a report of the Police Officer that the dispute is likely to cause a breach of peace concerning any land, he shall make an order in writing, stating the grounds of satisfaction and requiring the parties concerned to attend the Court on a specified date to put in their claims in respect to the actual possession of the said land. He further submits that the said procedures were not followed by the learned Court and there was no finding to the said effect and neither the parties were called by the Court. 10. He further submits that under Section 146 of Cr.PC, it is provided that only after an order is made under Section 145(1) of Cr.PC, the Court would take recourse to Section 146 of the Cr.PC and he submits that the said exercise was not done. To substantiate his arguments, he has placed the Judgment of the Hon’ble Supreme Court passed in Ashok Kumar Vs. To substantiate his arguments, he has placed the Judgment of the Hon’ble Supreme Court passed in Ashok Kumar Vs. State of Uttarakhand by which the Hon’ble Supreme Court while interpreting Section 146 of the Cr.PC had observed that a case of emergency as mentioned in the said Section has to be distinguished from a mere case of apprehension of a breach of peace and that when reports indicates that one of the party is in possession rightly or wrongly, the Magistrate cannot pass an order of attachment on the ground of emergency. 11. Mr. J. Ahmed, learned counsel for the respondent No. 3 had submitted before this Court that although there was exchange of lands between the parties but the petitioner is in forcible possession of both the lands and that respondent No. 3 was not in possession of his land. He submits that before the impugned Order dated 26.04.2024, a report was called for and in the said report, it was stated that there is a dispute over the disputed land and that there is possibility of breach of peace and tranquility and on the basis of the same, the impugned order was passed. 12. To substantiate his arguments, Mr. J. Ahmed has placed reliance on the following Judgment:- 1). Prabakar Tiwari Vs. State of UP passed by the Hon’ble Court of Allahabad. 2). Mahant Gobin Saran G. Maharaj Vs. State of UP , passed by the High Court of Allahabad. 13. I have heard the learned counsels for the parties and have gone through the record. 14. It is apposite to quote Sections 145 of the Cr.PC, which reads as hereunder:- “ 145. Procedure where dispute concerning land or water is likely to cause breach of peace.- (1) all be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (4) The Magistrate shall then, without reference of the merits or the claims of any of the parties to a right tWhenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land and the rents or profits of any such property. (3) A copy of the order sho pos(2)sess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute :Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of this order under sub-section (1). (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3). (7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. (10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107. 15. On the perusal of Section 145 Cr.PC, it becomes clear that only on receipt of the Police report or on any information that a dispute is likely to cause breach of peace, concerning any land, the Executive Magistrate may order in writing on being satisfied of the same. It further provides that Magistrate may call the parties or their pleaders to appear on specific dates to show who are in actual possession of land. It further provides that Magistrate may call the parties or their pleaders to appear on specific dates to show who are in actual possession of land. It then provides that the Magistrate would then decide as to who is in possession of the land on the basis of evidence. It is only after the said exercise, the Magistrate would take recourse to Section 146 Cr.PC, on such requirements Section 146 Cr.PC may be quoted below:- 146. Power to attach subject of dispute and to appoint receiver.- (1) If the Magistrate at any time after making the order under Sub-Section (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 thereto with regard to the person entitled to the possession thereof; Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. (2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any civil Court, make such arrangements as he considers proper for looking after the properly or if he thinks fit. Appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908); Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any civil Court, the Magistrate— (a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the civil Court and shall thereafter discharge the receiver appointed by him; (b) may make such other incidental or consequential orders as may be just.” 16. The aforesaid provision makes it abundantly clear that only in case of emergency, after making an order under Section 145(1) of the Cr.PC, which provides that an order may be made regarding breach of peace and tranquility on the basis of a report of a Police Officer, the Court on a decision to be made that none of the parties are in possession of the disputed land or that it was not known as to who are in possession of the disputed land, the Court can attach the said land until a competent Court decides on the rights of the parties. 17. A bare perusal of the impugned Order dated 26.04.2024 reveals that the petitioner was cultivating paddy on the disputed land and that as observed by the Hon’ble Supreme Court that if possession is seen either rightly or wrongly, the Magistrate cannot pass an order of attachment and as such, in the instant case, the Magistrate could not have passed the order of attachment as has been done in the instant case. 18. It is also seen that during the pendency of the application before the Settlement Officer by respondent No. 3, a report was called for from the Circle Officer and in the said report, it was stated that the petitioner were in possession of the disputed land and as such, when the possession is established of any of the parties, an order under Section 146 Cr.PC cannot be made. 19. Another arguments raised by Mr. J. Ahmed, learned counsel for the respondent No. 3 that vide Order dated 08.02.2024, the Court had ordered the parties to execute a bond of Rs. 5,000/- for 1 (one) year for keeping peace and tranquility in the locality, however, as is reflected in the impugned Order dated 26.04.2024 that after the said order of 08.02.2024, on 12.02.2024 the respondent No. 3 had filed a complaint before the Court of Sub-Divisional Magistrate alleging that the petitioner had breached the peace and tranquility, answers the argument. Further, in pursuance to that, a report was called for from the In-charge Nayer Alga Outpost, District Dhubri regarding the said dispute and the report was submitted that the petitioner has forcibly cultivated paddy on the said disputed land, disregarding the proceedings under Section 107 /145 of Cr.PC. Further, in pursuance to that, a report was called for from the In-charge Nayer Alga Outpost, District Dhubri regarding the said dispute and the report was submitted that the petitioner has forcibly cultivated paddy on the said disputed land, disregarding the proceedings under Section 107 /145 of Cr.PC. Further, in the said impugned order, although there is a finding that the on-going dispute is likely to cause a breach of peace and tranquility but as held by the Hon’ble Supreme Court that only in case of emergency, order under Section 146 (1) of Cr.PC may be passed and the Hon’ble Supreme Court has made a distinction between emergency and apprehension of breach of peace. In the said order, it is seen that the Court had only considered the breach of peace and tranquility and not the emergency case and thereafter, had passed the order under Section 146 (1) of the Cr.PC, which is not in accordance with law. 20. It is further seen that on the applications being made by respondent No. 3 before the Settlement Officer, it was ordered therein that the parties should go before the Civil Court for settlement of their rights and it is seen that the Title Suit has been filed before the learned Court. It is as such directed that the parties may contest before the Civil Court with regard to their rights over the disputed land. 21. In view of the same, this Court finds it fit that the impugned Order dated 26.04.2024 passed by the Sub-Divisional Magistrate, Bilasipara in Misc. Case No. 138/2023 should be set aside and accordingly, the same is set aside and quashed. 22. Accordingly, the Criminal Petition stands disposed of.