Surendra Singh and Ors. vs District and Sessions Judge,Kanpur & Ors.

N. B. Asthana, J.—By this petition under Article 226 of the Constitution of India the petitioners seek a writ ofcertiorary to quash the orders dated 1111995 under

Section 145(1), Cr. P.C. and dated 30101995 under Section 146 (1), Cr. P.C. passed by respondent No. 2 in Criminal Case No. 2 of 1995 Ram Naresh Singh v. Surendra Singh, in proceedings under Section 145, Cr. P.C. and for a writ of mandamus directing the respondents not to interfere in the peaceful possession of the petitioners over the subjectmatter of dispute which are chaks Nos. 48,137 and 142 as detailed in the preliminary order.

Against the attachment order passed under Section 146 (1), Cr. P.C. the petitioner had filed a criminal revision before Sessions Judge, Kanpur Nagar which was dismissed by him in limine.

The only point argued in this petition is that it was not a case of emergency so that the land in dispute could be attached under Section 146 (1), Cr. P.C. and that the SubDivisional Magistrate has acted without jurisdiction in getting the land attached. The order in question was passed by the SubDivisional Magistrate on 301095 relying upon the police report dated 16111994. The SubDMsionla Magistrate in passing the attachment order did nto rely upon any other police report. The preliminary order had been passed on 1111995. The SubDivisional Magistrate did not consider the case at that time to be one of emergency and did not pass order of attachment at that time. There is nothing on the record to indicate that anything special or extraordinary happened in between the date of preliminary order and the date of attachment so that it became a case of emergency. In any case as the parties had appeared they should have been heard before the attachment order was passed because such attachment tended to deprive one of the parties of possession.

It was argued on behalf of the contesting respondent that the petitioners should have approached the trial court itself under subsection (5) of Section 145, Cr. P.C. or under the proviso to subsection (1) of Section 146, Cr. P.C. and they have unnecessarily rushed to this Court. Under Subsection (5) of Section 145, Cr. P.C. a party or any other person interested may show that no such dispute existed and upon being satisfied that no such dispute existed the Magistrate may cancel the order passed under subsection (1) of Section 145, Cr. P.C. and under the proviso to subsection (1) of Section 145, Cr. P.C. the Magistrate may withdraw the attachment if he is satisfied that there is no likelihood of breach of peace. These arguments would not help respondent No. 4 in any way because the existence of emergency is a condition precedent for making such attachment, and if such condition precedent did not exist the SDM had no jurisdiction to make attachment and if the order is without jurisdiction, it can be assailed in a writ petition. It is no doubt a question of subjective satisfaction of the SDM and this Court would normally not interfere in such satisfaction of the trial court but there should be some evidence upon which the SDM could base his subjective satisfaction. In the instant case there is no evidence to indicate that it is a case of emergency. The order of attachment passed under Section 146(1), Cr. P.C. cannot, therefore, be sustained.

The writ petition is allowed in part. The order dated 30111995 passed by respondent No. 2 under Section 146 (1), Cr. P. C. is quashed.