Patna High Court
Sheo Mangal Choudhary And Anr. vs The State Of Bihar And Ors. on 3 January, 1991
Equivalent citations: 1992(40)BLJR548, 1992CRILJ34
ORDER Syed Haider Shoukat Abidi, J.
1. This application has been filed by the petitioners Sheo Mangal Choudhary and Raj Mangal Choudhary for quashing the order dated 15-1-1990 passed by Shri R.N. Prasad, Executive Magistrate, Siwan in Case No. MNO. 1963 Tr. No. 767 of 1989 under Section 146(1) of the, Code of Criminal Procedure (hereinafter referred to as 'the Code') attaching the disputed land and appointing receiver to take possession of the crops and deposit the amounts after selling the crops on open auction.
2. A proceeding under Section 145 of the Code had been started on the basis of a petition by the Ist party dated 29-6-1989 in which notices were issued to the parties to show cause. Ist. party appeared, 2nd party did not appear. The service report dated 23-10-1989 was to the effect that on 22-10-1989, the process server went to the 2nd party who saw the notice but refused to give receipt. The report of the process server Kapil Choubey is on the record. On 23-10-89 when the case was taken up, Ist party appeared but the 2nd party was not present. The court fixed 8-1l-1989, Ist party was present. On 1-11-1989 the Ist. party filed an application saying that the 2nd party has come to know of the proceeding and so, he has become very aggressive and bloodshed was likely to be caused, that the 2nd party was trying to take forcibly the possession and so, there was threat by him to occupy the land and cut away the standing suger cane crop. On this application, the court called for a report from the Police. On 8-11-1989 the report of the police was not received. The court then fixed 1-12-1989 when Ist. party was present and second party was not present and the report was not received. On 7-12-1989, was the same position and the case was transferred to the court of learned Executive Magistrate where on 16-12-1989 nothing was done. On 22-12-1989 both parties appeared but the case was not taken up. On 29-12-1989, the case was not taken up as the court was busy. On 3-1-1990, both the parties were absent. Then on 10-1-1990, Ist. party was present but second party was absent. The report of the police was received. The Ist. party was heard and the court observed that 2nd party had appeared on 7-12-1989 and 22-12-1989 but for the last three dates, the 2nd party was not appearing and so, a last chance was being given to them fixing 15-1-1990 for argument. On 15-1-1990 the court passed the impugned order saying that the Ist. party was present, 2nd party was absent and no show cause has been filed. Police Report was perused, situation was explosive as reported in the report and so, the disputed land was attached under Section 146(1) of the Code and crops were ordered to be sold. Shri Muktinath Mishra was appointed receiver. The 2nd party then filed an application on 27-1-1990 saving that when the receiver went to the spot, then they came to know about the order, and that the Service report of the process server Was collusive and so, the order may be recalled. On 16-2-1990 too, the Ist. party was present, 2nd party was absent, the court rejected the said application saying that order has already been passed and in the situation, the impugned order cannot be reviewed by him. The 2nd party has filed this application for quashing the order dated 15-1-1990 and, has not sought for quashing the order dated 16-2-1990.
3. The learned counsel for the petitioners has urged that the service report is collusive and they have never been served with the notice, that the order sheet showing the 2nd parties' appearance is also incorrect. So, without notice to them, the impugned order could not be passed under Section 146(1) of the Code. Further the order itself does not give out the reasons for passing the order and if there was any emergency, as according to law, the details should have been given out. The learned counsel for the petitioners has referred to several decisions which will be considered hereinafter.
4. The learned counsel for the opposite parties has urged that the notices had been served upon the 2nd party (Petitioners) as is borne out by the report of the process server. Further the police report shows that on the spot, the 2nd party was present when the police had gone there for enquiry and the 2nd party-petitioners have been coming to the court which is apparent from the order-sheets. Even if, the petitioners were not present in the court, or no notices have been served on them, the order under Section 146(1) of the Code can be passed by the court for which no notice is necessary and lastly, he has said that the details are not necessary to be given and that as per materials available in the police report brought on record, it appears that the situation was explosive and emergent situation was there and so, the court could pass the order of attachment of the disputed land. The said order of attachment was an interlocutory order which could come to an end, when the court would pass an order for or against any party.
5. As to the 'first contention about the service of notice, it appears from the report of the process server that he had gone to 2nd party who saw the notice but refused to receive the same. The report of the process server had not been challenged, and nothing has come out on record to show that, this report had been made collusively. Further the report of the police dated, 7-12-1989 shows that the police had gone to the spot for enquiry and both the parties were present The order sheet of 22-12-1989 is quite clear to show that both the parties were present on that date though the order sheet dated 7-12-1989 in respect of 2nd party is not clear. Even after filing of the application dated 27-1-1990, the 2nd party-petitioners did not bother for the case and did not appear to argue case when the orders have been passed.
The learned counsel for the petitioners has relied upon the decision in the case of Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer, AIR 1961 SC 1500: 1961 All LJ 650 in which it has been observed at page 1504 in para 6 as follows:
The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force". ...Similarly if without notice of the date of its pronouncement an award is pronounced and a party is not present, the award can be said to be made when it is communicated to the party later.
In the case of Pahilarrai v. Jethi Bai, AIR 1959 Patna 433 : 1959 Cri LJ 1105 it has been observed as follows (Paras 2, 3):
Before making an ex parte order against the husband under Section 488, mere publication of the notice in the Government Gazette cannot serve the purpose of notice as understood under Section 68 read with Section 69 unless provision to that effect has been made by the State Government. For, under the provisions of the said sections not only the summons must issue but it must be served, in the absence of any express direction by the State Government, by a Police Officer or by an officer pf the Court issuing it or by any other public servant. In the absence of the service of summons the ex parte order made under Section 488 is liable to be set aside.
Learned counsel for the other, side has relied upon a Full Bench decision of this Court in the case of Gaya Singh v. Collector Singh, 1979 PLJR, 324 equal to 1979 Cri LJ 1110 (FB) : AIR 1979 NOC 120 (Pat) wherein it has been observed at page 328 : "Even under the new Code (it) is open to the Magistrate while initiating a proceeding Under Section 145 to attach the subject matter in dispute without hearing the other side.
6. Section 146 of the new Code is similar to Section 145 of the old Code with only addition of one more condition in Section 146 (1) that the Magistrate can attach the land in dispute if he considers the case to be one emergency and the attachment can continue until a competent court decides the right of the parties for the possession thereof. The Magistrate can also withdraw the attachment if he feels satisfied that there is no longer any likelihood of breach of the peace. This section does not provide that at the time of passing of the order for attachment, notice should be issued to the parties concerned and that this order should be passed after the parties have appeared or have been heard. What this section means is that if the court, after passing an order Under Section 145, comes to the conclusion on the basis of the material placed before him that an order for attachment is to be passed then the court should do the same even without waiting for appearance of the other side. In case of waiting for the appearance of interested party or return of the service report, the situation might become out of control specially in cases when a party may become interested in delaying his appearance. The Courts have been giving different interpretations as to whether the Magistrate should wait for the appearance of the other side and pass order after hearing the same and it was being felt that once the order of the magistrate under this section is passed then the same can be withdrawn only when a court of competent jurisdiction has determined the right of the parties or when there is no likelihood of the breach of the peace. In such a situation when the order, of attachment is passed, it bring an end to the proceedings Under Section 145 and a party adversely affected by the attachment order is deprived of his valuable rights. A Division Bench of this Court in the case of Khedu Mahto v. Smt. Prem Sundari 1975 BBCJ 856, has held at page 860 in paras 6 and 7 : "that this attachment has to cease also when the competent court decides the dispute between the parties or when the magistrate is satisfied that there was no longer any likelihood of breach of the peace with regard to the possession over the subject of dispute..."This is not an interim attachment, it is in the nature of a final order which is to continue for some time and may be for several years, till the dispute is decided by a court of competent jurisdiction, as such likely to affect the rights of the party concerned to remain in possession of the subject of dispute. Once an order Under Section 146 is passed behind the back of such party who may be in actual possession of the land in dispute, he has no Occasion to show to the Magistrate that the claim made on behalf of other party was a mere pretence and by the order of attachment his valuable right had been put in jeopardy. In such a situation, the magistrate cannot even withdraw the attachment letter although after hearing other side, he may be of the opinion that the claim of one of the parties was a mere pretence and it was he who was responsible for creating the apprehension of a breach of the peace.... However, if a party or parties after having been given adequate opportunities, declined to appear before the Magistrate and produce materials in support of his/their claims, the matter will be different and it will be open to the Magistrate to pass an order Under Section 146 vide Bengathi Parida v. Bachhanidhi Panigrahi, AIR 1930 Patna 29 : 1929) 30 Cri LJ 894. "It is true that, in come cases, the situation may be such as to call for immediate action to avoid breach of the peace. But in my judgment, merely by passing an order making the property custodia legis of breach of the peace cannot be avoided, the Magistrate concerned has ample power under the other sections of the Code of Criminal Procedure apart from deputing the police force for the purpose.
A, learned single Judge of Allahabad High Court in the case, of Chandi Prasad v. Om Prakash Kanodia, 1976 Cri LJ 209 : 1976 All LJ 211, while referring to the decision in the case of M.G.M.T. Marwari Primary High School v. S.D.M., Deoriya 1975 All LR 235 in which has been held "by reading 145 (1) and 146(1) together it was obvious that both, the sections empower the Magistrate to pass an interim order during the continuance of the proceedings Under Section 145 (1) or prior to the passing of the final order, if he considers the case of emergency", has observed that "no-where it had been held by the learned Judge that proceeding Under Section 145 are still to continue after such an order of attachment is passed". It was further observed that if the Magistrate attaches, the property, consequences are to follow as provided Under Section 145 (1) and the attachment could be withdrawn only if there is a decision of a competent court of civil jurisdiction or likelihood of breach of the peace no longer exists.
A learned single Judge of Delhi High Court, in the case of Hakim Singh v. Cirwar Singh 1976 Cri LJ 1915 also took the view that "once a property was attached under Section 146(1), Sub-divisional Magistrate could not decide the question of possession Under Section 145 in respect of the attached property". A Division Bench of Orissa High Court, in the case of Dandapani Pala v. Madan Mohan Pala 1976 Cri LJ 2014 took the view that in case of emergency, on attachment Under Section 146, the dispute before the criminal court comes to an end and which party entitled to possession has to be determined by the competent court. The Bench approved some unreported decisions of its own court and followed the said decision of Allahabad High Court in the case of Chandi Prasad v. dm Prakash (Supra).
A learned single Judge of this Court in the case of Md. Musleuddin v. Md. Salauddin, 1976 Cri LJ 1150 has held that "the Magistrate has no jurisdiction to decide the question of possession Under Section 145 after attachment Under Section 146". A learned single Judge of Rajasthan High Court in the case of Mansukh Ram v. The State 1977 Cri LJ 563 also took the same view that on the attachment Under Section 146(1), the proceeding Under Section 145 come to an end: He too relied upon the decision of Chandi Prasad v. Om Prakas (Supra) and also a decision in the case of Umrao v. Shiv Narayan 1975 Raj LW 353. Similar was the view of a learned single Judge of Lucknow Bench of Allahabad High Court in the case of Syed Zakir Hussain v. State of Uttar Pradesh 1978 Cri LJ 1002 : 1978 All LJ 871 that the court becomes functus officio after attachment Under Section 146, Cr.P.C.". But a Division Bench of Bombay High Court, in the case of Cajitan A.D.' Sauza v. State of Maharashtra 1977 Cri LJ 2032 has differently held at page 2037 (Para 11) that "the magistrate does not become functus officio merely because of his passing an order of attachment during the pendency of the proceedings before him, because he considers the case to be one of emergency and that he would be bound to proceed with the enquiry and pass final orders under Sub-section (6) of Section 145 and on passing such final orders the attachment naturally comes to an end and that further if the magistrate was satisfied that there was no longer any likelihood of breach of the peace with regard to subject matter of the dispute, he could withdraw the attachment also. The Bench after referring to the decisions of Chandi Prasad v. Om Prakash (supra) and Md. Musleuddin v. Md. Salauddin (supra) held that they did not consider the object and scheme of two relevant provisions.
A learned single Judge of Allahabad High Court, in the case of Ramadhin Singh v. Shyama Devi 1977 Cri LJ 453 : 1977 All LJ 382 took the similar view that in case of attachment in emergency, the proceeding Under Section 145 does not come to an end. In the case of Kshetra Mohan Sarkar v. Puranchand Mandal, 1978 Cri LJ 936 a Division Bench of Gauhati High Court, after referring to the decisions of Ramadhin Singh v. Shyama Devi (Supra) and Cajitan A.D. 'Sauza v. State of Maharashtra (supra) and Chandi Prasad v. Om Prakash (Supra) also held that the proceedings Under Section 145 did not come to an end. The Bench overruled a decision of its own High Court in the case of Kamavao v. A.C. Mactuithei 1977 Assam Law Report 58.
In the ease of Chandu Nayak v. Sitaram B. Nayak AIR 1978 SC 333 : 1978 Cri LJ 356 a preliminary order Under Section 145 passed on 29-7-1975 and on the same day, attachment order had been passed Under Section 146 (1). Written statement was filed on 2-8-1975. The case was heard from, time to time. On account of the Maharashtra Vacant Land (Prohibition of Unauthorised Occupation c and Summary-Eviction) Act, 1975, the Magistrate took the view that he had ceased to have jurisdiction in the ease. The Supreme Court said that the proceedings in question did not abate, on account of the said Act and the case has to be disposed of by the Magistrate in accordance with the provisions of Sections 145 and 146 of the Code. The direction was also issued by the Supreme Court to conclude the proceedings in accordance with the provisions of Section 145, Cr. P.C. Following this decision of the Supreme Court and on account of there being different pronouncements whether the court becomes functus officio or not, a Full Bench of this Court in the case of Gaya Singh v. Doman Singh 1979 Cri LJ 1110 : 1979 PLJR 324 : AIR 1979 NOC 120 (Pat) overruled its earlier Division Bench decision in the case of Khedu Mahto v. Prem Sundari (Supra) and held at page 1113 in para 6 as follows :
In view of this pronouncement, it has to be held that under the new Code, it is open to the magistrate while initiating a proceeding under Section 145 to attach the subject matter of dispute without hearing the other side and this attachment is to last till the proceeding Under Section 145 is decided in favour of one party of the other. After that, the attachment has to be withdrawn in accordance with the aforesaid proviso to Sub-section (1) of Section 146 of the new Code, because after the decision there would be no longer any likelihood of breach of the peace with regard to subject of the dispute. The attachment according to the aforesaid judgment of the Supreme Court, is to continue till the matters decided by a competent court only under two categories (i) when the Magistrate decides that none of the parties was in possession of the disputed property, or (ii) he is unable to satisfy himself as to which of them was in such possession of the subject in dispute.
In the case of Jagjit Singh v. Jeet Kaur 1979 Cri LJ 119, a learned single Judge, after considering the various pronouncements, took the view that the proceeding Under Section 145 does not terminate on account of attachment Under Section 146(1) and the Magistrate Was to decide possession Under Section 145(4)" The 'Supreme Court in the case of Mathura Lal v. Bhanwar Lal 1980 Cri LJ : AIR 1980 SC 242 has observed at page 7 in para 5 as follows:
All situations in which an attachment may be made are now mentioned together in Section 146. The words 'pending his decision under this section have apparently been omitted as unnecessary since Section 145 provides how the proceeding initiated by a preliminary order must proceed and, therefore, an attachment made at any time after making Under Section 145(1) can only continue until the determination of the proceeding. A determination of the proceeding if he finds one of the parties in possession as stipulated, the Magistrate must make an order as provided Under Section 145 (6) and withdraw the attachment as provided in Section 146(1) since there can be no dispute likely to cause breach of the peace, once an order in terms of Section 146 is made. In our view, it is wrong to hold that the Magistrate's jurisdiction ends as soon as an attachment is made on the ground of emergency.
Similar was the view in the case of M.A. Rahman v. State of Andhra Pradesh, 1981 Cri LJ 1291 about the continuance of the proceedings Under Section 145 even after attachment in the emergency. A learned single Judge of Allahabad High Court, in the case of Yadram v. State of U.P., 1982 Cri LJ NOC 84 following the said Division Bench decision of Assam High Court and the Supreme Court decisions, took the view that the Magistrate does not become functus officio.
Thus, from all these it is clear that the Magistrate does not become functions officio after passing an order of attachment and he can proceed to decide the case Under Section 145. The Division Bench, in the case of Khedu Mahto (Supra) on account of holding that the magistrate becomes functus officio, had held that the order of attachment should be passed after hearing the other side. But the same learned Judge, in the Full Bench decision in the case of Gaya Singh, has held that the court did not become functus officio and also held that the order of attachment can be passed without hearing the other side. Later, in the case of Smt. Tulsi Devi v. Bhagwat Ram 1983 Gri LJ 72 and in the case of Suresh Nath Pandey v. State of U.P. 1984 Cri LJ NOC 202 also the learned single Judges have taken the view that in emergency attachment, previous enquiry or notice to any party is not necessary. Thus, from all these it is clear that notice to the opposite party before passing an order of attachment, was not necessary and the magistrate could pass the order for attachment on seeing the material brought to him after the passing of an order Under Section 145(1) if the situation warranted the same. As seen earlier in the instant case the service of summons has been effected upon them, opposite party in the proceeding by refusal to give receipt yet they appeared on two dates (Sic). In spite of so much opportunities being given to the 2nd party to appear, if this 2nd party does not appear and when the situation is reported by the police to be explosive, the Magistrate had no option but to pass the order in the absence of 2nd party. As such, there is no force in their contentions that the order had been passed behind their back.
7. It has also been contended that there is no appearance of the petitioners on the record and for that reason, the order-sheet is incorrect. This is a question of fact. Even in the petition dated 27-1-1990, no such grievance to this effect has been made. Whether there was any lapse, has never been challenged earlier. As such, there is no reason to disbelieve the order of the court that the petitioners had not appeared.
8. Learned counsel for the petitioners has urged that a magistrate while passing an order Under Section 145 of the Code, has not to pass an order for attachment Under Section 146, Cr. P.C. simultaneously. He has to pass the order for attachment after some enquiry about the situation which needs for attachment. He has referred to a Division Bench decision of this Court in the case of Kheda Mahto v. Smt. Prem Sundari 1975 BBCJ 856 which has been overruled by the Full Bench wherein it has been held, at pages 860 and 861 in paras 6 and 7:
6. In view of the aforesaid provisions, it is no more open to a Magistrate to draw up a proceeding Under Section 145 and to simultaneously attach the subject of dispute and then to direct the parties to file written statements and documents for the purpose of deciding the proceeding Under Section 145
7. The question for consideration is as to at what stage the order Under Section 146 of the new Code can be passed : can it be passed simultaneously while drawing up the proceeding Under Section 145, as has been done in the case in hand, or only at a later stage? Apparently, no such restriction has been prescribed in section 146, as it says that Magistrate "at any time after making the order under Sub-section (1) of Section 146. But this does not mean that he has not to apply his independent mind to the question as to whether, after drawing up of the proceeding Under Section 145, the situation call for an order of attachment Under Section 146.
While examining the question as to at what stage a Magistrate could pass an order Under Section 146, as it stood before 1955, it was held in several cases that the Magistrate must make some inquiry for the purpose of ascertaining as to whether the dispute was of the nature which fulfilled the conditions laid down in Section 146. In this connection reference can be made to the cases of Ambica v. Wazid Ali, Daulat Ali v. Hedait, Sheo Balak v. Bhagwat and Ram Bhal Singh v. Ram Bahadur Singh. In the case of Ram Bahal Singh, was observed:
After all, the order Under Section 146 is almost the same as an Act of confiscation and therefore, the Magistrate should naturally be reluctant to make use of that section.
However, if any party or parties, after having been given adequate opportunities, decline to appear before the Magistrate and produce materials in support of his their claims, the matter would be different and it will be open to the Magistrate to pass an order Under Section 146 Vide Bangati Patrida v. Banchhanidhi Panigrahi: AIR 1930 Patna 29 : (1929) 30 Cri LJ 894. In that view of the matter, I am of the opinion that before passing an order of attachment, a Magistrate must hear both the parties and apply his independent mind to the question as to whether any of the three new Code existed, vesting in him jurisdiction to pass an appropriate order. It is true that in some cases the situation may be such as to call for immediate action to avoid breach of the peace. But, in my judgment, merely by passing an order making the property custodia ligis a breach of the peace cannot be avoided; for that, the Magistrate concerned has ample power under other sections of the Code of Criminal Procedure, apart from deputing the police force for the purpose. As such, it has to be held that in the instant case the order of the learned Magistrate attaching the subject of dispute while drawing up the proceeding Under Section 145, without applying his independent mind to the question as to whether any such order was called for, is, per se, illegal. Moreover, the learned Magistrate having attached the lands in dispute, has directed the parties to file written statements and documents, which is not sanctioned by the new Code.
This Division Bench decision, as seen earlier, has been overruled by the Full Bench decision in the case of Gaya Singh v. Doman Singh (supra). In the case of M.A. Rahman v. State of Andhra Pradesh, 1981 Cr. LJ 1291, a learned single Judge held : "It is also submitted that the orders can be made simultaneously. In the first instance this assumption is wrong. The first order was made Under Section 145 (1) Cr. P.C. and then the order Under Section 146 (1), Cr. P.C. was made. It is not necessary that there should be a time between the two orders see V. K..Rao v. Chandappa (1977) 79 Bombay LR 16". In another decision in the case of Mahendra Tewari v. Most. Lal Pari Devi 1982 Cri LJ 17 a Division Bench of this Court has held at page 18 (Para 5) : "From the discussion of the case this much is clear that an order of attachment cannot...be passed simultaneously in the sense that a Magistrate, while initiating a proceeding Under Section 145 of the Code cannot, at the same time, also made an order of attachment. An order of attachment has got to be made subsequent to the initiation of the proceedings in the circumstances mentioned in Section 146 (1) of the Code." ...In the case of Ram Bani Bose v. District Magistrate, All. 1986 ALJ 1236, a Division Bench observed: "The first situation in which an order of attachment can be passed is when the Magistrate considers the case to be one of emergency. This jurisdiction can be exercised at any time after making an order under Sub-section (1) of Section 145".
A learned single Judge of Delhi High Court in the case of Anand Ram Nandu v. The State, 1986 Cr. LJ 2008, has dealt with this aspect at page 2010 (Para 6): It is apparent from the language of Sub-section (1) of Section 146 of the Code that as far as the first situation is concerned, attachment can be ordered at once even without going into the merits of the respective clauses regarding possession of the parties.
Thus, it is clear that after an order under Section 145(1) of the Code has been passed if there is material to show that there is emergency, then the court after considering the material even without the appearance or hearing of the other party can pass the order of attachment Under Section 146(1) to avoid breach of the peace. First an order Under Section 145(1) is to be passed, then if situation needs, then order Under Section 146(1) of the Code can be passed.
In the instant case, the learned Magistrate has not passed the order Under Section 146, Cr. P.C. simultaneously. It was after the passing the order Under Section 145, Cr. P.C. on 26-9-1989. The Ist. party made an application dated 1-11-89 after several dates that the order of 15-1-1990 on consideration of the matters put by the Ist. party, was passed. As such, the order dated 15-1-1990 is not a simultaneous order.
9. It was also urged that in the order the word 'emergency' has not been mentioned and, so, the order is bad. As to this contention, it is clear that the court has said that the police report shows that the situation is explosive. The court accepted the police report and so passed the order. Explosive situation indicates an emergency and so, use of the word 'emergency' has not adverse effect and the order is not vitiated. In the case of Baijnath Choubey v. Ram Eqbal Choubey 1981 PLJR 317 : 1981 Cri LJ NOC 212 (Pat) it has been held : "the omission on the part of the magistrate to use the word 'emergency' that itself will not vitiate the attachment is the order otherwise discloses emergency; As such, this contention too, has got no force.
10. The next contention of the learned counsel for the petitioners about the order being vague as it mentions only that emergency had been reported by the police, rather the order should have given but the detail's as to whether there was really emergency or not. As to this contention, the learned counsel has referred to the case of Sardar Amrit Singh v. Gyendeo Sharma J977 BBCJ 658 : 1978 Cri LJ 678 in which it has been observed in para 2 as follows:
The Magistrate has not said expressly that it was a case of emergency. It may be that even in such cases where the Magistrate does not say that the case is one of emergency but if the circumstances are such that the superior Court thinks that the case was one of emergency, then that Court may not interfere. Here, the Magistrate has merely said that breach of the peace might take place at any time. In each and every case where a proceeding Under Section 145 is initiated, there is an apprehension of breach of the peace that is, breach of the peace may take place any time. If there is no apprehension of breach of the peace, then a proceeding Under Section 145 of the Code cannot be initiated. Therefore, a case of emergency, as contemplated Under Section 146 of the Code, has to be distinguished from a mere case of apprehension of breach of the peace, Both cannot be equated. A mere statement on the part of the Magistrate that he thinks at there may be breach of the peace on the disputed land any time cannot be taken to be that in his opinion it is a case of emergency. Even if the Magistrate says that the case is of emergency, that by itself may not be sufficient for attachment. In the order to be passed by the Magistrate he must explain the circumstances why he thinks it to be a case of emergency, so that the superior Court may Judge whether the Magistrate has really applied his mind to the facts or not and whether his satisfaction of the case of emergency is a judicial and objective one. In absence of this, the order of attachment on the " ground of emergency cannot be sustained.
In the case of M.A. Rahman v. State of Andhra Pradesh (supra), at. page 1293 in para 6 it was observed:--
The order passed; by the learned Magistrate says that a dispute likely to cause, a breach of peace exists between the parties concerning the land. Its is true that he did not say in his order that he considered the case to be one of emergency for attaching the land. It is always desirable if the Magistrate mentions. in his order the grounds for the attachment. Otherwise, it will lead to the argument that he had passed the order without any of the conditions mentioned in the section existing. But, there we should understand the order of the Magistrate in the light of the report submitted by the Circle Inspector of Police. Basing on that report, the Magistrate had passed the order. The report clearly shows that there was every likelihood of breach of peace and public tranquillity, the police were unable to control the situation even after posting police picket and the situation was uncontrollable and, therefore, it was necessary that the land should be attached. In view of this report the Magistrate directed attachment. It means, he had considered the case to be one of emergency. If so, one of the conditions for directing attachment of the land in dispute under Sub-section (1) of Section 146, Cr. P.C. is satisfied, In the case of B. Dasso Patro v. B. Tariniga Patro reported in 1983 Cri LJ 121, the learned single Judge of the Orissa High Court has observed at page 11 in para 3 as follows :
It would be noticed from, the impugned order that while drawing up the, proceedings under Section 145(1) of the Code, the learned Magistrate simultaneously passed order attaching the lands under S, 145 (146?) (1) of the Code and appointing the Revenue Inspector, Comonda, as the receiver, without assigning any reasons. This would show that the learned Magistrate had not applied his mind properly and had not exercised his discretion judicially while passing the orders Under Section 146(1) of the Code. Without even recording that he had been) satisfied that eases required emergent measures. I would, therefore, quash these orders passed in both the proceedings. It is open to the learned Magistrate to pass an order Under Section 146(1) of the Code in each of the proceedings in accordance with the provisions contained in Section 146(1) of the Code.
In the case of Mahendra Tiward v. Mostt. Lalpari Devi (supra) while referring to the case Sardar Amrit Singh v. Gyandeo Sharma (supra), the Division Bench of this Court has observed at page 18, para 5. "I have already referred to the Additional and Subsequent materials which were brought on the record by the first party to impress upon the learned Magistrate that a grave situation might arise in case no order of attachment was passed. Therefore, although the impugned order is not explicit in disclosing those facts in details as the ground for passing an order of attachment, having examined the materials on the records, I do not find any reasonable ground for interference with the order of the learned Magistrate. I do not find any substance in the other argument of the learned counsel, which was directed towards the observation made in the impugned order that the learned Magistrate was unable to decide the possession of the parties on account of legal difficulties.
In the case of Chet Lal Mahton v. Rewa Lal Mahton 1983 PLJR 257 a learned single Judge of this Court has observed as follows :--
The word 'emergency' mentioned in Section 146(1) of the Code envisages a situation completely different from one in which there is apprehension of breach of the peace which is one of the basic legal necessity for the Code. It is not enough merely to state that some abnormal situation had arisen. The Magistrate, even if he states in his order that in his opinion it was a case of emergency that by itself cannot be held to be sufficient for passing an order of attachment Under Section 146(1) of the Code. The order should contain the fact and Circumstances to be drawn that it was a case of emergency. The order should contain at least, so much of material that it may be possible for a higher court to test objectively whether the Magistrate has applied his mind for recording his satisfaction about emergency. Mechanical reproduction of certain terms are used in the statute cannot justify a finding unless there are materials in support of it.
After referring to the decisions in the cases of Mahendra Tiwari v. Mostt. Lalpari Devi, and Baijnath Choubey v. Dr. Ram Ekbal Choubey v. Dr. Ram Ekbal Choubey (supra), the learned Judge has further held at page 261 para 11 of the abvoe case as follows:
Undoubtedly, when materials are available on the record regarding situation of emergency, interference with such order is not called for by the revisional court on the ground of omission to use the word 'emergency' by the Magistrate. I have already held that the learned Magistrate has failed to furnish the materials to justify his finding regarding emergency and so the principles laid down in these cases are not at all helpful to the opposite parties.
In the case of Sono Gope v. Rameshwar Yadav 1984 PLJR 176 : 1984 Cri LJ NOC (Pat) 126, the learned single Judge has, at page 177, para 3, observed as follows:--
The impugned order, however, does not indicate in the least that the learned Magistrate considered that there was any such emergency which ex necessitated for taking action under Clause 1 of Section 146 of the Code. There is no mention of the fact that the Anchal Adhikari made any such report or asked the Court for attachment of the lands in dispute. It may also be noted that the operation of the impugned order was stayed, and the properties were not custodia legis, and that no untowards incident reported to have happened during the period. The order, in question, since suffers from infirmity and also in the circumstances referred to above, it is fit to be set aside.
In the case of Sheo Prasad v. State of U.P. 1985 Cri LJ NOC 17, the Division Bench of the Allahabad High Court has held at page 11 as follows:
The attachment can be made Under Section 146 (1) at any time after the making of the preliminary order if the Magistrate considers the case inter alia to be "one of emergency". Reading Sections 145 and 146 together it is obvious that the conditions for the making of the preliminary order are not co-extensive with the conditions which would justify the order of attachment, an 'emergency' is not, an ordinary exigency. It is the existence of an emergent condition, a situation of urgency which calls for swift action and does not brook any delay. Mere existence of a dispute concerning land or the existence of a situation in which there may be likelihood of breach of peace do not by themselves, constitute such an emergent condition. There must be something more to it which calls for immediate action and that immediacy must justify not merely the initiation of proceedings or a requisition to the parties to come before the court, but the attachment of the property itself so that it is put beyond the reach of the feuding parties. The order of attachment and appointing of a receiver cannot be justified on the ground of element of conspiracy and deceit "nor because the property is of considerable value. These are wholly irrelevant for the purpose of determining or indicating the emergency nature of the situation.
11. From all these observations, it becomes clear that at the time of passing of the attachment order Under Section 146 of the Code, there must be emergency and as such, in that situation, the order of attachment is essential to be passed. The Magistrate, passing the order must give out details in his order from which it may appear that he has applied his mind to the circumstances of the case and the facts before him and has thought fit to pass the attachment order. Even if, the order is not explicit but if the circumstances are there and the material is on the record from which it can be inferred that there was such a situation that the order for attachment was inevitable, and then, the order does not suffer from any infirmity and illegality if the details have not been given out. If there is report of the Police that the situation is such that if the attachment is not made, then the situation may become out of control and it may be difficult to maintain law and order and peace then the non-giving of details by the court has not adverse effect. If such materials are there, it, can be reasonably inferred that there was an, emergency and so the order could be passed and order without giving details is not bad.
12. In the instant case, it appears that after passing of the order Under Section 145 of the Code, it was shown by the Ist party that it was-a case of emergency and the parties were bent upon to take possession. A report was called for from the police which submitted its report saying that both the parties are blunt type persons and there is a chance of cutting of crops by second party forcibly and that there is tension and also chance of marpit between the parties and that situation is so explosive that any time, there can be bloodshed. The police, in such situation, prayed for attachment of the crops and appointment of receiver. Taking all these aspects of the matter, the learned Magistrate attached the property and appointed a receiver. In such a situation and keeping in view these facts, it cannot be said that the order passed by him is without any materials or is vague.
13. In the result, this application, which has no merit, is liable to be dismissed and is so dismissed. The lower court record is directed to be sent back to the court below forthwith so that the case may disposed of immediately.