Ishri Gope vs Krishna Kumari Devi and Others

Shambhu Prasad Singh, J.—The petitioner, second party to a proceeding u/s 145 of the Code of Criminal Procedure, 1973 (hereinafter called the "Code"), prays for quashing of the order dated 13th of July, 1976, passed by an Executive Magistrate, attaching the property which is the subject-matter of dispute in the proceeding, u/s 146(1) of the Code, until a competent civil court finally determines the rights of the parties.

It has been contended by the learned Counsel appearing on the petitioner that as the Magistrate has neither recorded a finding that there was emergency nor has decided that none of the parties was in such possession as referred to in Section 145 of the Code, or that is unable to satisfy himself as to which of them was in such possession at the relevant time, the order is bad. In reply to this contention it has been submitted that the Magistrate has said that as there was serious apprehension of clash between the parties owing to the impending sowing season, he has, though not directly, indirectly recorded a finding as to emergency. I do not think, there is substance in this contention. In each case of land dispute where a proceeding u/s 145 of the Code is started, there is likely to be apprehension of clash between the parties owing to the impending sowing season and that by itself cannot be said to be emergency within the meaning of Section 146 of the Code. The Magistrate must record a clear finding that in his opinion the case is one of emergency. Section 145 of the Code contemplates that once a proceeding under that section is started, the Magistrate should decide as to who was in possession of the property in dispute. But once an order u/s 146 of the Code is passed, the Magistrate cannot decide a proceeding u/s 145. Then the question of possession must be decided only by a competent civil court. Therefore, all cases of apprehension of clash between the parties owing to impending sowing season cannot be taken to be cases of emergency. The power of attachment u/s 146 of the Code has to be sparingly exercised so as not to render the provisions of Section 145 of the Code nugatory.

It has next been submitted by the learned Counsel for the opposite party that the impugned order was an interlocutory order and, therefore, not opens to revision by this court. There also, he does not appear to be correct. An order of attachment u/s 146 of the Code is not an interlocutory order. It is a final order in the sense that thereafter no further orders can be passed in the proceeding by the Criminal Court. The attachment has to remain in force till the question of possession is decided by a competent Civil Court. It is ordinarily the last order passed by a Criminal Court in the proceeding, and thus final.

Learned counsel for the opposite party has also made certain submissions on the question whether the proceeding u/s 145 of the Code was justified or not. Since that is not a matter for consideration before this court, it is not necessary to refer to his contentions in this regard.

Learned counsel for the opposite party has also submitted that one of the members of that party has got a recent delivery of possession in his favour. If that be so, then he should be against the order of attachment. Really a person who is in possession of a property in dispute, in a proceeding u/s 145 of the Code does not favour an order of attachment. Be that as it may, that is not relevant for the purpose of deciding whether the impugned order is legal or not.

For the reasons aforesaid, this application is allowed and the order dated 13th of July, 1976 passed by the Magistrate is set aside,