Madhu Limaye vs The State Of Maharashtra on 31 October, 1977
In view of the above ratio laid down by the Hon'ble Supreme Court now I proceed to examine as to whether the Sub-Divisional Magistrate had passed the order of attachment under Section 146(1) of the Code. An analytical examination of the provisions of Section 146(1) of the Code would show that the order of attachment under the said section can be passed by a Magistrate if he considers the case to be one of emergency or if he decides that none of the parties was found in possession or he is unable to satisfy himself as to which party was then in possession of the subject of dispute. A careful examination of the order of the Magistrate dated 29-10-94, a copy where of has been placed on record, would show that although he has directed the attachment of property in question under sub-section (1) of Section 146 of the Code, yet he has not recorded finding either that it was a case of emergency or that none of the parties was in possession or that he was unable to satisfy himself as to which of the parties was in possession. In the first paragraph of his order he has mentioned that on 9-10-92 an application was moved on behalf of Bhrigu Nath Singh Kushwaha that exchange of blows took place between the parties on the question of possession of the disputed piece of land and in this regard a case was pending and further that there was apprehension of repetition of exchange of blows or murder or rioting on the question of possession. He has a further mentioned that in the said application it was prayed that the land in dispute be attached under Section 146(1) of the Code so that apprehension of any untoward incident between the parties may be avoided.