Kaniram vs Kashiram and another

K.L. Shrivastava, J.—This revision petition is directed against the re-visional order dated 21-3-1986 passed by the Additional Sessions Judge Raj-garb (Biora) in Criminal Revision No. 36 of 1985 whereby he has set aside the order dated 8-7-85 for attachment of the land in dispute.

The circumstances giving rise to this petition are these. According to the petitioner he is the recorded Bhumiswami of the land in dispute. He is an old man and had given the land to this relative Kashiram, the non-applicant No. 1 for cultivation for two years on the basis of profit. At the end of the period of two years he entered into possession of the land but the non-applicant Kashiram tried to disposses him. He, therefore, reported the matter to the police. As no action was taken, he laid information before the learned Sub-Divisional Magistrate on 8-7-1985 for action u/s 145 of the Code of Criminal Procedure 1973 (for short ''the Code'').

The police also laid information before the learned Sub-Divisional Magistrate on 8-7-85 and action under sections 145 and 146 of the Code was prayed.

The learned Sub-Divisional Magistrate finding that there was likelihood of breach of the peace and further that there was emergency, passed a prliminary order u/s 145(1) and also an order for attachment of the property in dispute.

The contention of the Learned Counsel for the petitioner is that the learned Additional Sessions Judge in passing the impugned order, has transgressed the limits of his revisional jurisdiction.

The contention of the Learned Counsel for the non-applicant is that the order passed by the learned Sub-Divisional Magistrate was not sustainable on the material on record and was rightly set aside by the Additional Sessions Judge in revision.

The point for consideration is whether the revision deserves to be allowed.

It may be stated at the outset that this Court steps in to interfere in revision where substantial miscarriage of justice has been occasioned.

In the revision aforesaid, the learned Additional Sessions judge has observed that existence of emergency is a condition precedent for passing an order for attachment of the property and in the instant case, there was no untoward incident and from a perusal of the affidavit filed by the petitioner it can certainly be said that it does not disclose facts disclosing emergency. Observing that it is no doubt true that it is in the jurisdiction of the learned Sub-Divisional Magistrate to satisfy himself regarding the existence of emergency but where his conclusion on this question is perverse, being not based on any material, the revisional Court can interfere, he passed the impugned order.

It has also been stated in the impugned order that there is nothing to disclose that the non-applicant Kashiram had re-delivered possession of the land in dispute to the petitioner Kaniram.

It was also brought to the notice of the learned Additional Sessio-on Judge that the non-applicant Kashiram had already instituted Civil Suit No. 4-A/of 1984 in the Court of Civil Judge Class II Biora for declaration of his title to the land in question claiming to be in exclusive possession thereof for years together. The proceedings u/s 145 of the Code were initiated at later stage, but it may be stated that mere pendency of civil suit does not constitute a bar to proceedings u/s 145 of the Code.

Criminal law respects possession. The purpose of the provision of section 145 of the Code is to provide for stopgap arrangment and to prevent a breach of peace by affording protection to the party in actual possession of the subject of dispute till he is evicted therefrom in due course of law. Parties have to be discouraged from taking law into their own hands.

Satisfaction as to the existence of a dispute likely to cause a breach of peace is the pre-condition of the Magistrate''s jurisdiction to pass a preliminary order u/s 145(1) of the Code. After such an order he can under S. 146(1) ibid pass an order of attachment of the subject of dispute in the three contingencies therein catalogued including the one regarding the case being one of emergency. A composite order under the two provisions is legally permissible but such an order has to spell out clearly the requirements under both the provistons. In order to sustain an order for emergency attachment, there must exist emergency and mere apprehension of breach of the peace is insufficient. There must exist material showing emergency.

It must be remembered that an order of attachment has the effect of making the property custodia legis and the party in actual possession stands dispossessed of the same. Therefore it should not be passed in a routine manner thereby permitting the provision to be mis-used at the hands of a party not in possession. In suitable cases resort to section 107 of the Code may be proper.

Admittedly Civil Suit by the non-applicant is already pending in respect of the subject of dispute. The proceeding u/s 145 of the Code has been initiated later. The learned Additional Sessions Judge in the circumstances of the case, has rightly observed that there was no material for holding that the case was one of emergency.

I find that the impugned order does not occasion any injustice and is sustainable. It is not liable to be interfered with in exercise of this Court''s revisional jurisdiction which is a discretionary one.

In the result, the revision petition being without merit, fails and is dismissed.