ORDER S. Rafatalam, J.
1. This revision is directed against the order of the learned Vth Additional Sessions Judge, Varanasi, dated 22-7-1998 allowing the revision of the opposite party.
2. Heard learned counsel for the revisionist and the learned counsel appearing for the opposite party. Both the learned counsel agreed for the disposal of this revision at this stage even without exchange of affidavits.
3. It appears that a proceeding under Section 145, Cr. P. C. was initiated on the report of police dated 26-6-95 stating that there is apprehension of the breach of peace between the parties with regard to the possession over the house situate in Kasba and Police Station Phoolpur, district Varanasi. Both the parties appeared on 5-7-95. The second party Chandra Shekhar filed an affidavit stating that the first party Jai Prakash took possession of his house forcibly, whereas the first party Jai Prakash sought adjournment for giving evidence with regard to his possession over the disputed house, which the learned Magistrate allowed and granted him time to give such evidence on 14-7-95. In the meanwhile, however, the learned Magistrate considering the case to be one of emergency, passed an order under Section 146(1), Cr. P. C. and attached the house in dispute on-7-7-95 and the same was given in the custody of one Phool Chandra Pandey. Thereafter the first party moved an application on 12-7-95 along with an affidavit that the aforesaid order under Section 146(1), Cr. P. C. has been passed without affording him opportunity of hearing and as such the same may be vacated. The learned Magistrate, after hearing the parties, by order dated 18-7-95, recalled his earlier order of attachment dated 7-7-95 on the ground, inter alia, that the same was passed without hearing the first party. The learned Magistrate, however, fixed 31-7-95 for hearing. Being aggrieved by the aforesaid order dated 18-7-95, the second party went in revision before the learned Sessions Judge which was heard and disposed of by the learned Vth Addl. Sessions Judge, Varanasi vide order dated 22-7-98 against which this revision has been preferred by the first party.
4. From a perusal of the order under revision dated 22-7-98, it is apparent that the learned Additional Sessions Judge has allowed the revision on the ground, inter alia that the learned Magistrate while recalling the order of attachment dated 7-7-95, did not record his satisfaction that there is no longer any likelihood of the breach of peace with regard to the subject of dispute. In my view, the learned Additional Sessions Judge has rightly set. aside the order of the learned Magistrate, as it was incumbent upon him while withdrawing the order of attachment to record his opinion/satisfaction about the non-existence of the apprehension of breach of peace with regard to the subject of dispute. On 7-7-95, the learned Magistrate was apparently satisfied that a dispute existed which was likely to cause breach of peace. He was, however, unable to satisfy himself as to which of them was then in possession over the disputed house, and consequently, passed an order under Section 146(1), Cr. P. C. attaching the house in question. Surprisingly immediately thereafter, i.e. after 10-11 days, he recalled the order.
5. There is no dispute that the learned Magistrate can recall the order passed under Section 146(1), Cr. P. C. provided he has perused the statements put in by the parties, heard the parties and received all evidence that may be produced before him. He is also required to consider the effect of such evidence and, if possible, to decide whether any and which of the parties was on the date of the order before mentioned, that is the order contemplated by Section 145(1) in such possession of the said subject. In the case in hand, the learned Magistrate without reaching to such conclusion that there is no likelihood of the breach of peace existed at the time of passing the order, has withdrawn the order of attachment. The mere fact that the first party was absent or was not heard at the time of passing the order on 7-7-95 alone is not sufficient nor there is any justification for the learned Magistrate to recall the order of attachment, in the absence of his satisfaction that there was no apprehension of the breach of peace. Nothing has been placed before this Court by the parties to show that after the earlier order of attachment under Section 146(1), Cr. P. C. dated 7-7-95, the learned Magistrate has received any further information or evidence or had satisfied himself that there was apprehension of the breach of peace and now it had come to an end. The learned Magistrate, if wanted to recall the order of attachment, he ought to have satisfied himself either by recording evidence or otherwise about the non-existence of the breach of peace. Therefore, in my view, the order of the learned Additional Sessions Judge does not suffer from any illegality or irregularity to be interfered with in the revisional jurisdiction of this Court. The learned Sessions Judge has rightly ordered to give effect to the attachment order dated 7-7-95 passed either by the learned Sub-Divisional Magistrate (North), Varanasi and also to decide the case after hearing both the parties in accordance with law.
6. In view of the discussions made above and in the facts and circumstances of the case, this revision is being disposed of with the direction to the learned Sub-Divisional Magistrate (North), Varanasi to pass a final order under Section 145, Cr. P. C. after hearing the parties as expeditiously as possible, preferably within a fortnight from the date of production of a certified copy of this order. In the meanwhile, however, it is provided that the parties shall maintain status quo as existing on 19-7-1995 till the final order is passed by the learned Magistrate.
7. With the aforesaid direction, the present revision is finally disposed of.