Chhedi Lal alias Mani and Another vs State of U.P. and Another

M. Wahajuddin, J.—The applicants have come forward with a prayer that the preliminary order dated 25-1-1983 as well as the other order of the same date u/s 146(1), Code of Criminal Procedure may both be quashed and the proceedings u/s 145 Code of Criminal Procedure as well be also quashed.

Reliance in support of the arguments are placed upon the cases of Sardari Lal and Another Vs. The State of Punjab and Others, , Amrit Singh and Others Vs. Gyandeo Sharma and Another, , Sri Chand Vs. Dhundi Ram Mathuri, . Law has to be applied to the facts of the case. I have perused the impugned orders. The Magistrate has stated that after perusal of the application and affidavit he is satisfied that there is a dispute between the parties centering round the possession of Immovable property involved and that breach of peace may take place at any moment. He has, thus, mentioned that the materials as such, upon which he was satisfied. In his order u/s 146 Code of Criminal Procedure, he has stated that he has started proceedings u/s 145 Code of Criminal Procedure and a breach of peace may take place any moment centering round the dispute over the possession of Immovable property and the situation is grave and, as, he is not able to decide the case forthwith, attachment u/s 146 Code of Criminal Procedure is directed. I may mention that as is laid down in the Code of Criminal Procedure itself the Magistrate can have the subjective satisfaction on the application and affidavit of any party or police report. The matter of satisfaction is purely subjective one. What the law requires is that in the preliminary order the ingredients which may confer jurisdiction should necessarily be stated, namely, that the satisfaction regarding apprehension of breach of peace centering round the possession of Immovable property should be recorded. That the Magistrate has done.

It has been urged that in any case the emergency attachment is bad and attachment should not have been made. As regards that direction the Magistrate has recorded in the order itself that a breach of peace may take place any moment and there is a gravity of the situation. When that is the position, it cannot be said that the Magistrate has not exercised his mind and has not given reasons for the orders passed. The report of the police was also read before me. The police stated that the applicant is in possession and further stated that there is a serious apprehension of breach of peace which may take place any moment. So far as the former part of the report was concerned, it is not the business of the police to decide who is in possession. That matter has to be decided in accordance with the express provisions of law itself, which are contained in Section 145(4) Code of Criminal Procedure. This can be done only after the written statements are filed and evidence is lead and arguments are urged, and that stage would arise only later. I may observe that a large number of pronouncements including R.H. Bhutani Vs. Miss Man J. Desai and Others, . and various others have been quoted in the AIR Manual IV Edition, Volume 13, on the commentary on Code of Criminal Procedure as per Note 25, and it is now a settled proposition of law that the High Court will not go into the sufficiency of the materials which satisfied the Magistrate. Otherwise also when it is a matter of subjective satisfaction of the Magistrate himself, sufficiency of materials will not be looked into. As regards the emergency, the Magistrate has observed in his order that considering the grave situation he is passing the order. When that is the position, compliance of legal provisions has been made by the Magistrate and any interference in the exercise of inherent powers on the facts of this case cannot be made and the application is summarily rejected. The Magistrate may expedite the disposal of the case.