1991 Supreme(Pat) 5

PATNA HIGH COURT
S.H.S.Abidi, J.
Sheo Mangal Choudbary
Versus
State Of Bihar
Criminal Miscellaneous No. 2131 of 1990 ;
Decided On : JANUARY 3, 1991

The Magistrate, passing the order must give out details in his order from which it may appear that he has applied his mind to the circumstances of the case and the facts before him and has thought fit to pass the attachment order. Even if, the order is not explicit but if the circumstances are there and the material is on the record from which it can be inferred that there was such a situation that the order for attachment was inevitable, and then, the order does not suffer from any infirmity and illegality if the details have not been given out. If there is a report of the Police that the situation is such that if the attachment is not made, then the situation may become out of control and it may be difficult to maintain law and order and peace then the non-giving of details by the court has no adverse effect. If such materials are there, it can be reasonably inferred that there was an emergency and so the order could be passed and order without giving details is not bad.

Headnote:

CRIMINAL PROCEDURE CODE - SECTION 146 - ATTACHMENT OF DISPUTED LAND - EMERGENCY - NOTICE - SECTION 145 - ORDER FOR ATTACHMENT - DETAILS - EMERGENCY - REPORT OF POLICE - INFERENCE - ORDER WITHOUT DETAILS - VALIDITY.

Fact of the Case:

The petitioners filed an application for quashing the order dated 15-1-1990 passed by the Executive Magistrate, Siwan, attaching the disputed land and appointing a receiver to take possession of the crops and deposit the amounts after selling the crops on open auction. A proceeding under S.145 of the Code of Criminal Procedure (CrPC) had been started on the basis of a petition by the 1st party dated 26-9-1989 in which notices were issued to the parties to show cause. The 1st party appeared, but the 2nd party did not appear. The service report dated 23-10-1989 was to the effect that on 22-10-1989, the process server went to the 2nd party who saw the notice but refused to give a receipt. On 23-10-89 when the case was taken up, the 1st party appeared but the 2nd party was not present. The Court fixed 8-11-1989, the 1st party was present. On 1-11-1989 the 1st party filed an application saying that the 2nd party has come to know of the proceeding and so, he has become very aggressive and bloodshed was likely to be caused, that the 2nd party was trying to take forcibly the possession and so, there was a threat by him to occupy the land and cut away the standing sugarcane crop. On this application, the court called for a report from the Police. On 8-11-1989 the report of the police was not received. The Court then fixed 1-12-1989 when the 1st party was present and the second party was not present and the report was not received. On 7-12-1989, the same position was there and the case was transferred to the Court of the learned Executive Magistrate where on 16-12-1989 nothing was done. On 22-12-1989 both parties appeared but the case was not taken up. On 29-12-1989, the case was not taken up as the Court was busy. On 3-1-1990, both the parties were absent. Then on 10-1-1990, the 1st party was present but the second party was absent. The report of the police was received. The 1st party was heard and the Court observed that the 2nd party had appeared on 7-12-1989 and 22-12-1989 but for the last three dates, the 2nd party was not appearing and so, a last chance was being given to them fixing 15-1-1990 for argument. On 15-1-1990 the Court passed the impugned order saying that the 1st party was present, the 2nd party was absent and no show cause has been filed. Police Report was perused, the situation was explosive as reported in the report and so, the disputed land was attached under S. 146(1) of the Code and crops were ordered to be sold. Shri Muktinath Mishra was appointed receiver.

Finding of the Court:

The Court held that the Magistrate, passing the order must give out details in his order from which it may appear that he has applied his mind to the circumstances of the case and the facts before him and has thought fit to pass the attachment order. Even if, the order is not explicit but if the circumstances are there and the material is on the record from which it can be inferred that there was such a situation that the order for attachment was inevitable, and then, the order does not suffer from any infirmity and illegality if the details have not been given out. If there is a report of the Police that the situation is such that if the attachment is not made, then the situation may become out of control and it may be difficult to maintain law and order and peace then the non-giving of details by the court has no adverse effect. If such materials are there, it can be reasonably inferred that there was an emergency and so the order could be passed and order without giving details is not bad.

Issues: 1. Whether the service of notice on the 2nd party (petitioners) was proper and in accordance with the law? 2. Whether the Magistrate had the jurisdiction to pass an order of attachment under Section 146(1) of the CrPC without giving notice to the petitioners? 3. Whether the order of attachment passed by the Magistrate was vague and did not provide sufficient details as to the emergency situation? 4. Whether the Magistrate was required to give specific reasons and details in the order for attachment under Section 146(1) of the CrPC?

Ratio Decidendi: 1. The Court held that the service of notice on the 2nd party was proper and in accordance with the law as the process server had gone to the 2nd party who saw the notice but refused to receive the same. The report of the police dated 7-12-1989 also showed that the police had gone to the spot for enquiry and both the parties were present. 2. The Court held that the Magistrate had the jurisdiction to pass an order of attachment under Section 146(1) of the CrPC without giving notice to the petitioners as Section 146(1) of the CrPC does not provide that at the time of passing of the order for attachment, notice should be issued to the parties concerned and that this order should be passed after the parties have appeared or have been heard. 3. The Court held that the order of attachment passed by the Magistrate was not vague and did provide sufficient details as to the emergency situation as the order sheet of 22-12-1989 is quite clear to show that both the parties were present on that date though the order sheet dated 7-19-1989 in respect of 2nd party is not clear. Even after filing of the application dated 27-1-1990, the 2nd party-petitioners did not bother for the case and did not appear to argue case when the orders have been passed. 4. The Court held that the Magistrate was not required to give specific reasons and details in the order for attachment under Section 146(1) of the CrPC as the section does not provide that at the time of passing of the order for attachment, notice should be issued to the parties concerned and that this order should be passed after the parties have appeared or have been heard.

Final Decision: The Court dismissed the application filed by the petitioners for quashing the order dated 15-1-1990 passed by the Executive Magistrate, Siwan, attaching the disputed land and appointing a receiver to take possession of the crops and deposit the amounts after selling the crops on open auction.