The main legal point established is that the provision of emergency attachment under Sec. 146(1) of the Code of Criminal Procedure may only be invoked when there is imminent breach of peace, and the Magistrate must be satisfied of the essential need for attachment.

Rekha Kumari, J.

1. This application under Sec. 482 of the Code of Criminal Procedure has been filed for quashing the order dated 11.8.2006 passed by the learned Sub-divisional Magistrate, Narkatiaganj in case No. 312(M) of 2006 whereby he has attached the disputed land and appointed the Anchal Adhikari, Narkatiaganj as receiver under the provisions of Sec. 146(1) of the Code of Criminal Procedure (hereinafter referred to as the Code).

2. Learned counsel for the petitioner submitted that the land in question is in possession of the petitioner and there is no breach of peace regarding the land and so, there was no ground to initiate a proceeding under Sec. 145 of the Code. He further submitted that the impugned order does not show that there was any emergency and, therefore, the learned Magistrate was not at all justified in passing the impugned order.

3. Learned counsel for opposite party Nos. 2 and 3 supported the order.

4. According to Sec. 146(1) of the Code the Magistrate in a proceeding under Sec. 145 of the Code can attach the disputed property in any of the conditions viz. (i) when he considers the case to be of emergency and (ii) when after enquiry he is unable to decide who among the parties is in possession or decides the name of the party in actual possession. A case of emergency contemplated under Sec. 146(1) of the Code is different from a mere case of apprehension of breach of peace. The provision of emergency attachment as envisaged under Sec. 146(1) of the Code may be invoked only in cases where the Magistrate records satisfaction that attachment of the property is essential as the breach is imminent and to make out a case of emergency there must be some material before the Magistrate on record from the statements of the parties, documents produced or evidence adduced and not upon personal impression of the Magistrate.

5. In this case, however, from the impugned order it appears that though there was no such material as mentioned above, the learned Sub-divisional Magistrate passed the impugned order. He has also not recorded any reason for his satisfaction that the case was one of emergency. The order recites that tension between the parties was continuing but from this bald expression, it cannot be said that there was any immediate apprehension of breach of peace between the parties and the case was one of emergency.

6. So, I agree with the learned counsel for the petitioners that from the impugned order it does not appear that the case was one of emergency for invoking the provision of Sec. 146(1) of the Code. It is also not the case that the learned Magistrate was unable to decide as to who was in possession or decide the name of the party who is in possession. Therefore, the impugned order cannot be sustained and accordingly the same is set aside. It is, however, observed that this would not debar the learned Sub divisional Magistrate to attach the said property if such a situation arises in future. Accordingly, with the above observation, this application is allowed.