An order of attachment under section 145 of the Code of Criminal Procedure must be based on material on record that supports the finding of an emergency or a likelihood of breach of peace. The parties affected by the order must be given an opportunity to be heard before the order is passed.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 145 - ATTACHMENT OF LAND - EMERGENCY - BREACH OF PEACE - SATISFACTION OF EXECUTIVE MAGISTRATE - MATERIAL ON RECORD - ADEQUACY - ORDER OF ATTACHMENT - JUSTIFICATION - WRIT PETITION - QUASHING OF PROCEEDING - MAIN PETITION UNDER SECTION 145 OF THE CODE OF CRIMINAL PROCEDURE - DISMISSAL.
Fact of the Case:

The petitioners and respondents were brothers who had divided their joint family property under a partition. In 1979, the second respondent filed an application with the Police Sub-Inspector, alleging that the petitioners and their sons were causing disturbance in his cultivation of certain lands. The Police Sub-Inspector conducted an enquiry and submitted a report to the Executive Magistrate, who passed an order on 24th July, 1979, directing the attachment of the lands and their placement under Government supervision. The petitioners challenged this order by filing a writ petition in the High Court.
Finding of the Court:

The High Court found that the Executive Magistrate's order was not justified. The Police Sub-Inspector's report did not contain any material to support the finding of an emergency or a likelihood of breach of peace. The Executive Magistrate had not issued any notice to the petitioners before passing the order, and he had not given them an opportunity to be heard. The High Court also found that the auction of the lands had been conducted in a suspicious manner, with the lands being sold at a throwaway price to persons who were connected to the respondents.
Issues: 1. Whether the Executive Magistrate's order of attachment was justified. 2. Whether the petitioners were entitled to a hearing before the order was passed. 3. Whether the auction of the lands was conducted in a fair and transparent manner.
Ratio Decidendi: 1. The Executive Magistrate's order of attachment was not justified because there was no material on record to support the finding of an emergency or a likelihood of breach of peace. 2. The petitioners were entitled to a hearing before the order was passed because the order had a significant impact on their property rights. 3. The auction of the lands was not conducted in a fair and transparent manner because the lands were sold at a throwaway price to persons who were connected to the respondents.
Final Decision: The High Court set aside the Executive Magistrate's order of attachment and directed the Sub-Divisional Magistrate to dispose of the main petition under section 145 of the Code of Criminal Procedure within two months.

JUDGMENT - V.S. KOTWAL, J.:---The facts, though simple, are rather surprising while the report of the Police Sub-Inspector, which appears to be the premise for the further order is disturbing and even the order passed by the learned Executive Magistrate is extremely disquieting and in between, there are several circumstances, which carry with them a tinge indicating that every thing is not above board in this entire proceeding and the most surprising and almost shocking feature is that by one stroke of pen largo area to the extent of roughly 170 acres have been attached and places in charge of the Receiver depriving the land-holders to cultivate and derive rightful benefit thereunder.

2. The episode starts in the month of June 1979. The lands are situate within the limits of Kalala Village in Biloli Taluka of Nanded District. It comprises of several survey number which have been transformed into gut numbers. The parties, though fortunately are educated, some of whom having been well placed in life have unfortunately indulged in bickering which had benefited none and destroyed the inteset of all. In June 1979, one Shankarrao Pralhadrao Deshmukh, respondent No. 2 herein, filed an application with the Police Sub-Inspector, attached to Police Station at Kuntur in Nanded district, making a grievance that he owns the land being Gut No. 182 and the in the capacity of the owner it is in his possession and under his cultivation. According to his grievance, the first two petitioners with petitioner No. 4 and the sons of some of the petitioners have started causing disturbance in the lawful enjoyment and cultivation of land by him. He further asserted that Gut No. 272 stands to the share of his mother and is in possession, though it is under his cultivation since he is holding the power of attorney executed by his mother. He has further made a grievance that the petitioners and their relations had threatened him with the sole object of desisting him from cultivating the land. He apprehended danger to his life and, therefore, requested the Police Sub-inspector to take cognizance of this matter and do the needful.

3. On the basis of this application the Police Sub-Inspector started acting very swiftly. He deputed a police head constable attached to the said Police Station to enquire into the matter and submitted a report. Accordingly hardly with a span of about one week the said Police Head Constable recorded the statements of the three of the petitioners, two respondents and three servants of the respondents and in fact this is all the enquiry held and conducted by the police machinery. In the meantime a grievance was made on behalf of the petitioners with the Superintendent of police at Nanded that almost a partial and bias enquiry was being conducted by the head constable. The Superintendent of police, therefore, was satisfied with the said grievance and directed the withdrawal of the enquiry from the said head constable and further directed the Police Sub-Inspector to himself conduct the enquiry. It is, further important to note at this juncture itself that by the time this order was passed on 14th June, 1979, the so called enquiry was concluded and on that basis the Police Sub Inspector forwarded his report to the Executive Magistrate at Biloli on July 9th, 1979. He contended therein that there appears to be a dispute between the parties who are near relations and it appears that there was an apparent discrepancy between the entries in the revenue record and the actual cultivation by the parties. He also felt that there was likelihood of breach of public peace and as such it was necessary to take action under section 145 of the Code of Criminal Procedure.

3-A. On the receipt of this report, the Executive Magistrate, Biloli was pleased to pass an order on 24th July, 1979, directing taking over of the land under Government supervision with the standing crops, if any and the Circle Inspector of that division was appointed as a receiver wi

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