IMPORTANT POINT
Section 146, Cr. P.C. - grounds form invoking.

Judgment :-

K.S. Radhakrishnan, J.

1. Leave granted.

2. We are, in this case, concerned with the validity of an Order of attachment passed under Section 146(1) of the Code of Criminal Procedure by Sub Divisional Magistrate (SDM), Haridwar on 25.11.2009 attaching property situated in khasra No. 181 admeasuring 0.400 hectares situated at Gram Subhash Garh, Pargana Jawala Pur, Tehsil and District Haridwar. The above- mentioned order was affirmed by the High Court of Uttarakhand at Nainital in Criminal Misc. Application (C482) No. 1029 of 2010 dated 27.03.2012.

3. Mona Sharma, the second respondent herein, mother of minor children, preferred O.S. No. 168 of 2009 before the Court of Civil Judge (J.D.) Haridwar with the appellant and third respondent as defendants praying for a decree of temporary injunction restraining them from interfering with their peaceful enjoyment and possession of the above-mentioned and few other items of properties. The suit was instituted on 02.09.2009. An application was also preferred under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for an order of interim injunction. The Civil Court did not grant any interim injunction, but only ordered notice to the respondents on 14.9.2009.

4. Mona Sharma later filed an application under Section 145, Cr.P.C. on 19.9.2009 in respect of the disputed property before SDM for an order of attachment of the property in question. An enquiry was conducted through the Pathri P.S., District Haridwar and Sub-Inspector of Police who submitted the report dated 01.10.2009 before the SDM, Haridwar. It was indicated in the report that house of Ashok Kumar is situated in the land in dispute where he has undertaken some construction. Further, it was also opined that the possibility of breach of peace in the locality could also be not ruled out. Meanwhile, in the civil suit, after conducting a local inspection, a report was submitted by the Amin on 21.11.2009 stating that the plaintiff is in possession of the property and the construction is going on. After referring to the report of the Sub-Inspector dated 01.10.2009, SDM Haridwar passed the impugned order dated 25.11.2009 attaching the property under Section 146(1), Cr.P.C., the validity of which is under challenge in these proceedings.

5. Shri Ambrish Kumar, learned counsel appearing for the appellant, submitted that the SDM has committed a grave error in passing an order under Section 146(1), Cr.P.C. attaching the property in question since possession of the property by the appellant was not disputed by the respondent while the civil suit was filed, so also when an application under Section 145 was preferred. Learned counsel submitted that the SDM has exceeded its jurisdiction in passing an order dated 25.11.2009, when the same issue is pending consideration in a civil court. Learned counsel also pointed out that the respondent could not get an order of injunction from the civil court, hence he invoked the jurisdiction of the SDM under Section 146(1), Cr.P.C. and got an order of attachment of the property. Learned counsel submitted that the SDM has committed a gross illegality in passing the order, when possession of the property by the appellant has not been disputed.

6. Shri Vivek Gupta, learned counsel appearing for the respondents, on the other hand, submitted that there is no illegality in the order passed by the SDM attaching the property under Section 146(1), Cr.P.C., since there is dispute regarding the possession of the property in question and tension is existing and peace can be breached at any time. Learned counsel submitted that there is no error in the order passed by the High Court, confirming the order of the SDM.

7. We are of the view that the SDM has not properly appreciated the scope of Sections 145 and 146(1), Cr.P.C. The object of Section 145, Cr.P.C. is merely to maintain law and order and to prevent breach of peace by maintaining one or other of the parties in possession, and not fo