Darog Ali and Others vs Musstt. Netgjan Ness and Another

Heard Mr. A.B. Choudhury, learned Counsel for the petitioners. None appears on behalf of the respondents despite notice.

This Criminal Revision has been directed against the impugned judgment and order dated 6.9.2001 passed by the Learned Sessions Judge, Bongaigaon in Case No. C.M6(2)/2001 by which the attachment order dated 11.4.2001 u/s 146(1) Cr.PC passed by the Learned Executive Magistrate, North Salmara, Abhayapuri in Case No. 47/2001 by drawing up proceeding u/s 145 Cr.PC was upheld.

Mr. Choudhury, Learned Counsel for the petitioners assailing the impugned judgment, has argued that the Learned Sessions Judge totally ignored the provisions of law laid down u/s 146 Cr.PC as regards attachment of the disputed land in drawing up proceeding u/s 145 Cr.PC. Drawing attention to the initial order dated 11.4.2001 which was challenged before the Sessions Judge, Mr. Choudhury learned counsel for the petitioners has contended that the order itself ex-facie shows that there was no emergency ever existed for passing such attachment order u/s 146 Cr.PC. In passing the attachment order dated 11.4.2001, the Leanied Magistrate observed as follows:

"...................

I am satisfied that there is every possibility of breach of peace between both the parties.

Therefore, I do hereby attached the Schedule ''A'' land mentioned below u/s 146(1) Cr.PC.

................."

According to him since no emergency existed, this attachment order u/s 146(1) Cr.PC cannot stand being contrary to the provisions of law as stipulated under the concerned section. Reliance has been placed on the decision of this court in Smti Sushma Rani Das and 2 Ors. v. Shri Ashutosh Das, reported in (1990) 2 GLR 215 wherein this court clearly viewed that it is settled law that the property can be attached only in case of emergency.

Admittedly, this Criminal Revision has been preferred before this court after dismissal of the revision petition preferred by the revision petitioners before the Learned Sessions Judge, When asked as regards maintainability, it is contended by Mr. Choudhury that though it is a second revision, there is no bar in entertaining this petition by this court u/s 482 of the Cr.PC, if the Learned Sessions Judge'' is found to have committed certain gross error of law and this court, being the superior authority over the sub ordinate court has the power to interfere with the order passed by the First Revisional court to correct the said erroneous findings. To bolster his point Mr. Choudhury has relied on a decision of the Apex Court in Jitender Kumar Jain Vs. State of Delhi and Others, In the said case the Apex Court has opined as follows :

"The appellant has moved the High Court of Delhi in a petition u/s 482 of the Code of Criminal Procedure invoking its inherent jurisdiction. The High Court assumed the petition to be as if one u/s 397(2)(sic 397(3)) of the Code of Criminal Procedure, which according to it did not He since the revision petition preferred by the appellant had been dismissed by the Court of Session. We are of the view that the High Court failed to distinguish its separate powers u/s 397 of the Code of Criminal Procedure as also u/s 182 of the said Code. It is true that a second revision petition doe not lie before the High Court when one is dismissed by the Court of Session. Still the Court of Session is court subordinate to the High Court and, as such, its proceedings are open to scrutiny by the High Court in exercise of its inherent power u/s 482 of the Code of Criminal Procedure. The High Court in these circumstances should not have dismissed the petition of the appellant on the premise as it has done. It is otherwise open to the High Court not to interfere in a matter when examining a case u/s 482 of tine Code of Criminal Procedure. In this view of the matter, we set aside the impugned order of the High Court and remit the matter back to the High Court for reconsideration. It is ordered accordingly."

In view of the above cited case, this court finds that there is enough force in the submission of the learned counsel for the petitioners to satisfy the court on the point of maintainability of this second revision. In the instant case, on careful perusal of the impugned order, it appears that the learned. Sessions Judge had not gone into the scope of Section 146 Cr.PC in passing, an attachment order which is only available in case of an emergency which is manifestly non-est in the case in hand.

Having regard to the judicial authority referred above and after hearing Learned Counsel for the petitioner this court is of the view that the order of attachment u/s 146 Cr.PC can only be passed If it is found that there in an emergency situation necessitating urgently to prevent the breach of peace and tranquility. If emergency of such nature does not exist, the operation of Section 146 Cr.PC does not come into force. In the instant case, the initial order dated 11.4.2001 is seemingly silent as regards the existence of any emergency.

That being so, this court is of considered opinion that the courts below committed an error of law in allowing the attachment order to continue in absence of any emergency and accordingly impugned attachment order passed u/s 146(1) Cr.PC is hereby quashed and set aside.

In the result, this revision petition is disposed of accordingly.