Back
1981 Supreme(Pat) 48
PATNA HIGH COURT
V.Mishra, J.
Baijnath Choubey
Versus
Ram Ekbal Choubey
Criminal Miscellaneous No. 6639 of 1980 ;
Decided On : FEBRUARY 24, 1981
A Magistrate can initiate a proceeding under Section 145 and attach the land under Section 146(1) without hearing the other party if there is an emergency, such as an imminent apprehension of breach of peace.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 145 - SECTION 146 - SECTION 146(1) - SECTION 146(2) - ATTACHMENT OF LAND - EMERGENCY - POSSESSION - RECEIVER - SCOPE OF MAGISTRATE'S POWER - VALIDITY OF ATTACHMENT ORDER - INTERPRETATION OF EMERGENCY - APPOINTMENT OF RECEIVER - GUIDELINES FOR MAGISTRATE.
Fact of the Case:
A dispute arose between two closely related families over the possession of 75 acres of land. The heirs of one brother filed an application under Section 145 of the Code of Criminal Procedure (CrPC) for a proceeding to determine possession. The Magistrate initiated the proceeding and attached the land under Section 146(1) on the ground of emergency, authorizing the police officer in charge to harvest and sell the crops and deposit the proceeds with the court. The other family challenged the Magistrate's order, arguing that it was illegal and without jurisdiction.
Finding of the Court:
The Court held that the Magistrate had the jurisdiction to initiate the proceeding under Section 145 and attach the land under Section 146(1) without hearing the other party. The Court found that there was an imminent apprehension of breach of peace, which constituted an emergency justifying the attachment. However, the Court held that the Magistrate could not define the shares of the co-sharers but could only decide the question of possession.
Issues: 1. Whether the Magistrate had the jurisdiction to initiate the proceeding under Section 145 and attach the land under Section 146(1) without hearing the other party. 2. Whether there was an emergency justifying the attachment. 3. Whether the Magistrate could define the shares of the co-sharers.
Ratio Decidendi: 1. The Court held that a composite order under Sections 145(1) and 146(1) is permissible in law, and the Magistrate can attach the subject matter of the dispute without hearing the other side. 2. The Court found that the Magistrate's order disclosed an imminent apprehension of breach of peace, which constituted an emergency justifying the attachment. 3. The Court held that the Magistrate could not define the shares of the co-sharers but could only decide the question of possession.
Final Decision: The Court dismissed the application with modifications and directions. The proceeding under Section 145 was to proceed, the attachment of the land was to continue, and a fresh arrangement for looking after the property was to be made. The Magistrate was directed not to define the share of the co-sharers but to confine himself to the decision on the question of possession. The Magistrate was also directed to transfer the case to another Court if he felt any embarrassment.
V.Mishra, J.
1. This is an application under Sec. 482 of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code) for quashing the proceeding under Sec.145 of the Code, in which the disputed land has been attached and certain consequential order has been made.
2. The parties to the application are very close relations. Sri Kishun Choubey, Paltan Choubey, Purushotam Choubey and Deomuni Choubey were full brothers. In the lower Court a proceeding under Sec.145 of the Code was initiated on an application filed by persons who represented the heirs of Paltan Choubey. Purushotam Choubey and Deomuni Choubey as first party. The heirs of fourth brother Sri Kishun Choubey were the second party there. In this Court some of the members of the second party in the lower Court are petitioners and the rest are opposite party second and third sets. The members of the first party in the lower Court are opposite party first set in this Court.
3. On 17.11.1980, the opposite party first set (in this Court) filed two applications (annexures 1 and 1-A to the petition) before the subdivisional Magistrate, Sasaram. In the first application it was said that in 1971 a partition suit had been filed for partition of the properties amongst the heirs pf the four branches mentioned above. That partition suit, however, abated on account of the consolidation proceeding under operation in the area. Since however, there could not be partition by metes and bounds and the parties could not pull on together, it was decided that the cultivation would be managed by a particular member of the family who would render accounts and after deducting the cost of cultivation would distribute the produce amongst the co-sharers according to their shares. According to the said arrangement, the land in dispute was under cultivation of the members of opposite party first set who were cosharers to the extent of 3/4th share. It was, however, said that though they had cultivated the land and grown paddy therein, the heirs of the fourth brother (co-sharers to the extent of l/4th share only) were cut to harvest the paddy and unless immediate steps were taken there was danger of crops being looted away. Prayer was, therefore, made for starting a proceeding under Section 145 of the Code and attaching the lands under Sec.146 of the Code and also for getting the crops harvested through machinery of the Court. The second petition also disclosed that members of 2nd party were bent upon cutting the paddy and specific prayer had been made for getting the paddy harvested, sold and for getting the sale proceeds deposited in the treasury. The area of the land involved is about 75 acres. The details are there in annexure 1.
4. On 17.11.1980 itself, the Subdivisional Magistrate heard the advocate of opposite party first set (here) and feeling satisfied that there was immediate apprehension of breach of peace between the members of the two parties before him passed the following order;
Heard the learned Advocate for the petitioner and also perused the complaint. The lands given in the schedule of the petition and noted below is said to be the joint property of four co-sharers of which there are three co-sharers in the first party.
It is alleged that the fourth co-sharers i.e. Ramadhar Chaubey and others are bent upon forcibly harvesting the entire standing crops in the disputed land due to which there is immediate serious apprehension of breach of the peace unless preventive action is taken. Procedure to harvest the paddy crop standing on the disputed land, is clearly laid down and the possession of each co-sharer is determined in respect of different plot and areas of the lands, the disturbances to the public peace and tranquillity are bound to take place and the possible blood-shed cannot be averted.
I am satisfied that there is immediate apprehension of the breach of the peace between the members of the 1st party and that of the 2nd party Dr. Ramekbal Chaubey and Ors. V/s
