Section 146 of the Code of Criminal Procedure provides that, after making the order under S. 145 for parties to appear before him, if the Magistrate considers the case to be one of emergency, or if he decides that none of the parties was then in possession of such property, or if he is unable to satisfy himself as to which of the parties was in possession of the subject-matter of the dispute, he may attach such property, until a competent Court determines the rights of the parties thereto with regard to the person who is entitled to its possession.
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Such an attachment can be withdrawn by the Magistrate at any later time, if he is satisfied that there is no longer any likelihood of breach of peace with regard to such property.
ADVERTISEMENTS:
When the Magistrate attaches such property, he may also make such arrangements as he considers proper, for looking after the property, or if he thinks fit, he may appoint a Receiver in respect of such property.
As observed by the Supreme Court, the object of such attachment is to keep the property in custodia legis, so as to prevent the disputants from causing a breach of the peace while attempting to obtain actual possession of the property. (Deo Kuer,—AIR 1966 SC 359)
The scope of Sections 145 and 146 was considered by the Supreme Court in Mathuralal v. Bhanwarlal and Another (1980 Cri. L.J. 1). The Court observed that S. 146 is not to torn out of its setting and read independently of S. 145. The Court held that the Magistrate’s jurisdiction does not come to an end as soon as an attachment is made on the ground of emergency.
The Kerala High Court has held that, under Sections 145 and 146, where there is a dispute as to possession, the Magistrate or the Court of Session has no power or authority to refer the dispute regarding the possession of the property to a Civil Court for a finding on the question of possession. (C. Vijayamma v. Padmanabhan Vasudevan and others, 1980 Cr. L.J. 119)
