Patna High Court
Mahendra Tiwary vs Mt. Lal Pari Devi And Ors. on 2 March, 1981
Equivalent citations: 1982CRILJ17
JUDGMENT Hari Lal Agrawal, J.
1. The petitioner, who is member of the second party to a proceeding Under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the Code) has filed this application against the order, dated 2nd May, 1979 passed by the Subdivi-sional Judicial Magistrate West Muzaf-farpur, whereby he ordered attachment of the land in dispute on the ground that there was sufficient tension (KAFI TANAV) between the parties and on that account, apprehension of breach of the peace. It has further been observed in the said order that to come to a decision as to which of the parties was in possession of the disputed land, it was bound to take certain time on account of the legal difficulties.
2. The order has been impugned by the petitioner on the ground that inasmuch as the facts stated in the order of attachment did not disclose any case of emergency the order of attachment was bad in law.
3. The proceeding in question was initiated on 27-11-1978 on a police report with respect to 1 acre 30 decimals of land. Written statements were filed by both the parties and then on 2-1-1979 the members of the first party filed a petition before the learned Magistrate alleging therein that the members of the second party (inadvertently mentioned in the petition as members of the first party) with a view to create unnecessary and illegal disturbance over the disputed land had started executing forged and fabricated documents with respect to the disputed land in order to set up other persons "to create uncalled for troubles over the disputed land leading to a serious apprehension of breach of peace in pendency of the present proceeding." On these allegations it was further alleged that an emergency existed, as breach of the peace had become imminent at the hands of the second party and their associates. Although the impugned order does not mention in any particular details, the materials, on which the learned Magistrate placed reliance in passing the order of attachment the order at least says this much that he looked into the written statement and heard both the parties. It seems, therefore, quite natural that members of the first party must have pressed the' above petition in the circumstances alleged therein, which prevailed upon the learned Magistrate to pass the order of attachment.
4. When the case was placed earlier before a learned single Judge of this Court for hearing, he referred the case to a Division Bench, as in his opinion, the question involved interpretation of two Supreme Court decisions. Although reference of the cases is not given; as informed at the Bar, those two cases of the Supreme Court are Chandu Naik v. Sitaram B. Naik and Mathuralal v. Bhanwarilal . Having given my anxious consideration to both the cases and hearing learned Counsel for both the parties, there does not appear to be much difficulty in understanding the ratio of either of the cases. The principle that flows from the above cases is that Sections 145 and 14G of the Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace and that Section 146 should not be separated from Section 145 and it can only be read in the context of Section 145 otherwise it may, mislead. It has been very clearly observed that in a case of emergency, a Magistrate may attach the property, at any time after making the preliminary order Under Section 145 (1). The argument that after the order of attachment of the property the -jurisdiction of the Magistrate ends, was repelled and it was laid down that the Magistrate's jurisdiction does not end as soon as an attachment is made on the ground of emergency and that there was no departure from the provisions contained in the old Code of Criminal Procedure and that the provisions of Sections 145 and 148 of the 1973 Act are substantially the same as the corresponding provision of 1955 amendment of the old Code.
5. From discussion of the above cases 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 make 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. Sufficient support can be derived for this view from the second case of the Supreme Court mentioned above. learned Counsel for the petitioner, however, sought to seek support from the decision of a learned single Judge of this Court in the case of Amrit Singh v. Gyandeo Sharma 1978 Cri LJ 671 where it was observed that the order of attachment must indicate circumstances, why the Magistrate thought it so, otherwise the order cannot be sustained. The learned Judge himself in the judgment has observed that "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." In the case before the learned single Judge the Magistrate had merely said that "breach of the peace might take place any time." Inasmuch as apprehension of breach of the peace was a jurisdictional fact and condition precedent for initiation of the proceedings, if I may say so, the learned Judge rightly thought that mere observation in the order of attachment was not sufficient for passing the order of attachment, as no indication of emergency was indicated. In the case before us 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. That was a casual observation and this position could arise only when the final order was to be passed at the close of the proceeding. The Order of attachment apparently was based upon the allegations, which were made by the first party, as already indicated above. Therefore, nothing would turn upon the validity of the order with reference to this further observation in the impugned order.
6. I accordingly do not find any merit in the application and dismiss the same. The proceeding which has been pending for quite a long time, now may ¦be expeditiously disposed of.
B.S. Sinha, J.
7. I agree.