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IN THE HIGH COURT OF JUDICATURE AT PATNA
ANIL KUMAR SINHA, J.
Anirudh Sah @ Anirudh Prasad Sah, S/o. Ramabtar Sah & Ors. - Petitioners
Versus
The State of Bihar & Ors. - Respondents
Criminal Revision No. 1042 of 2017
Decided On : 03-11-2023
CRIMINAL PROCEDURE - DISPUTE OVER LAND POSSESSION - Code of Criminal Procedure, Sections 144, 145, 146 - The court discussed the provisions of Sections 144, 145, and 146 of the Code of Criminal Procedure, emphasizing that a Magistrate must establish an emergency situation before issuing an attachment order under Section 146. The court found that the Sub Divisional Magistrate failed to demonstrate the necessary conditions for invoking Section 146, leading to the conclusion that the order was improperly issued and lacked sufficient evidence.
Fact of the Case:
The case arose from a dispute over land possession involving three plots. The Opposite Party filed for a proceeding under Section 144, claiming possession of plot no. 8088, which led to a conversion to Section 145 proceedings. The petitioners contended that they had rightful ownership and possession of the adjacent plots, and the Sub Divisional Magistrate later issued an attachment order under Section 146 without sufficient evidence of an emergency.
Finding of the Court:
The court found that the Sub Divisional Magistrate did not fulfill the necessary conditions for issuing an attachment order under Section 146. There was no evidence of an emergency or that neither party was in possession of the disputed land. The court emphasized the need for a proper inquiry and consideration of evidence before such orders are made.
Issues: Whether the Sub Divisional Magistrate correctly invoked Section 146 of the Code of Criminal Procedure without establishing an emergency or proper possession status of the disputed land.
Ratio Decidendi: The court held that the Magistrate must demonstrate an emergency situation and consider the evidence before issuing an attachment order under Section 146. The lack of such findings rendered the order invalid.
Final Decision: The court quashed the order dated 26.07.2017, passed by the Sub Divisional Magistrate, allowing the revision application.
JUDGMENT :
Anil Kumar Sinha, J.
The present revision application arises out of the order, dated 26.07.2017, passed, in Case No. 236 of 2014, by the Sub Divisional Magistrate, Sheohar, whereby a proceeding, under Section 146 (1) of the Code of Criminal Procedure, for attachment has been initiated and the Circle Officer, Piprahi, has been appointed as receiver of plot no. 8089, having an area of 16 decimals and plot no. 8090, having an area of 14 decimals, situated in village Ambakala Tola, Nayagaon, Police Station Piprahi, in the district of Sheohar.
2. The brief facts, giving rise to the present revision application, is that on 08.07.2014, the Opposite Party No. 2 filed an application in the Court of Sub Divisional Magistrate, Sheohar, for initiation of a proceeding under Section 144 of the Code of Criminal Procedure against the petitioner and his family members, claiming that they have dug a ditch upon plot no. 8088, khesra no. 1620, over which the Opposite Party No. 2 is having possession and has been living peacefully. The area of plot no. 8088, in question is 12.5 decimals. The said case was registered as Case No. 236 of 2014 and notices were issued to the petitioners and others on 10.07.2014. The Opposite Party no. 2, on 11.08.2014, filed a petition, stating therein that adjacent to the disputed land, i.e. plot no. 8088, there is land of the petitioners, bearing plot nos. 8089 and 8090, in which the petitioners have dug a ditch. Therefore, now, plot nos. 8088 and 8090 became disputed. Accordingly, the Opposite Party No. 2 prayed to convert the proceeding under Section 145 of the Code of Criminal Procedure.
3. The petitioners filed their show cause on 21.08.2014, stating that the correction of wrong entry of 4.5 decimals of land, in plot no. 8088, in the revisional survey has been made in Case No. 09 of 1981 by the Consolidation Officer, Piprahi, and after correction, 4.5 decimals of land came in plot no. 8090 from plot no. 8088, by order, dated 13.11.1981 (Annexure 3). The said land is in the share of the petitioners, as per the partition deed, dated 08.05.1956.
4. After partition, the father of the petitioners purchased plot nos. 8091 and 8439, having an area of 50 decimals in the name of the mother of the petitioners, namely, Ram Badan Devi. Therefore, in the revisional survey, the khatiyan of aforesaid land was made in the name of Ram Badan Devi for 50 decimals of land.
5. On 06.09.2014, the Sub Divisional Magistrate, Sheohar, converted the proceeding from 144 to 145 after arriving at the finding that there is question of possession over the disputed land.
6. The Opposite Party No. 2 filed a petition on 18.11.2014 to include plot no. 8089 and 8090 in the present dispute on the ground that plot nos. 8088, 8089 and 8090 is conjoint and mixed up.
7. On 05.01.2016, the Opposite Party No. 2 filed a petition under Section 146 (1) of the Code of Criminal Procedure for attachment of disputed land and appointment of receiver pertaining to plot nos. 8088, 8089 and 8090. This petition was filed after lapse of two years from the date of conversion of the proceeding from 144 to 145.
8. The Sub Divisional Magistrate, Sheohar, vie memo no. 9, dated 11.01.2016, called for a report from the Station House Officer, Piprahi Police Station and a report thereto was submitted by the Station House Officer on 21.02.2016 (Annexure 9), in which wrong plot no. 8080 was mentioned. Hence, the Sub Divisional Magistrate, Sheohar, vide another letter, dated 05.07.2016, called for a fresh report from the police and the Station House Officer, vide letter no. 1018, dated 17.08.2016 submitted a fresh report stating therein that the dispute with respect to plot nos. 8088, 8089 and 8090 is pending since long between both the parties, who are co-sharers and both of them are claiming their ownership over the land.
9. Vide letter no. 229, dated 13.07.2017, the Sub Divisional Magistrate, Sheohar, directed the Circle Officer to submit his report upon plot nos. 8088, 8089
An order under Section 146(1) requires evidence of emergency which was not present, highlighting the need for judicial discretion in land disputes.
The main legal point established in the judgment is that criminal proceedings under Section 145 and Section 146(1) of the Code of Criminal Procedure, 1973 should only be initiated when there is a lik....
Property which in joint possession is outside ambit of Section 145 Cr.P.C. Magistrate cannot decide question of joint possession.
Point of Law : Section 145 of Code concerned with restoration of possession and prevention of breach of peace and tranquillity.
The court emphasized that attachment orders under emergency provisions must be backed by compelling evidence of imminent danger to public peace, otherwise it constitutes a misuse of legal process.
An order of attachment under Section 146 (1) Cr. P. C. is an interlocutory order and not maintainable in revision.
(1) Apprehension of breach of peace – Sections 145 and 146 of Cr.P.C. together constitute a scheme for resolution of a situation where there is a likelihood of a breach of peace because of a dispute ....
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