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1. This reference arises in a proceeding started under Section 145, Criminal P.C. It appears that there was a dispute between Sadloo Bhar and his brothers on the one hand and Eajdeo Singh on the other, concerning a plot of land and a crop standing thereon. Sadloo Bhar moved the learned Magistrate by means of an application stating that there was an imminent danger of a breach of the peace concerning this land and the crop and that the property should be attached. The learned Magistrate seems to have been satisfied as to the imminence of the danger of a breach of the peace and ordered that notice might be issued under Section 145, Sub-section (1), Criminal P.C., to the parties concerned. He further Ordered that the property in dispute be attached. On the date fixed in the notice issued under Section 145(1), Sadloo Bhar did not appear. The learned Magistrate dismissed Sadloo Bhar's application for default on 4th July 1946, and ordered that the attached property be released. He did not specify in his order in whose favour the property was to be released. Thereafter, an application was made by Rajdeo Singh that the application of Sadloo Bhar might be dismissed and the attached property should released from the possession of Sadloo Bhar and restored to him. A similar application was made by Sadloo Bhar and his brothers that the attached property, which was in their possession should be released in their favour and not in favour of Rajdeo Singh. The learned Magistrate fixed 30th August 1946, for the hearing of these two applications. Sadloo Bhar appeared while Rajdeo Singh was absent. The learned Magistrate then adjourned the case for the following day. On the following day, i.e., 31st August 1946, Sadloo Shar was present but Rajdeo Singh was not present. It does not appear that any notice of the adjourned hearing was issued to Rajdeo Singh at all, and it does not seem likely that he could have been served with any notice since only one day elapsed between the previous date and the adjourned date. On this adjourned date, the learned Magistrate passed the following order:

The second party (Bajdeo Singh) has again absented itself. Let the attached property be released is favour of the first, party (Sadloo Bhar and his brothers).

2. Against this order Rajdeo Singh filed an application in revision to the learned Sessions Judge, Azamgarh. The learned Sessions Judge has taken the view that the procedure adopted ,by the learned Magistrate in releasing the attached, property in favour of Sadloo Bhar and his brothers was based on no evidence on the record and was wholly without jurisdiction; and he has referred the matter to this Court.

5. In view of these considerations, it may be laid down that the order of the Magistrate dated 4-7-1946, dismissing the application of Sadloo Bhar for default was not an order contemplated by law. In certain cases such an order may be construed as being in substance one under Section 145, Sub-section (5), in the sense that when the Magistrate dismisses an application for default he is satisfied that there is no dispute likely to cause a breach of the peace. I am, however, satisfied that in the present case, the learned Magistrate was not acting under Section 145(5) at all. In this view of the matter/the subsequent proceedings would also fall to the ground. Assuming, however, that the learned Magistrate's order was passed under Section 145(5), let us see if what he has done later on can be supported.

6. The learned Magistrate had attached the subject of dispute under the provisions of the second proviso to Sub-section (4) of Section 145. When he dismissed the application of Sadloo Bhar he ordered that the attached property be released. But he did not order in whose favour the property was to be released. On a later date, he ordered the property to be released in favour of Sadloo Bhar and his brothers, probably on the ground that the other party was absent. This order was passed without taking any evidence. This order is wholly unauthorised.