An order under Section 146(1) requires evidence of emergency which was not present, highlighting the need for judicial discretion in land disputes.

JUDGMENT :

PURNENDU SINGH, J.

1. Heard learned counsels appearing on behalf of the petitioners and learned APP appearing on behalf of the State.

2. The present application has been filed for quashing the order dated 07.05.2024, by which the Sub- Divisional Officer, Sadar Darbhanga converted the proceeding under Section 144 of the Cr.P.C. into section 145 of the Cr.P.C., and attached the lands of the petitioners under Section 146 (1) of the Cr.P.C. bearing Khata No.1080, Plot No. 1439, Area 4 Bigha 5 Kattha 4 Dhur, Khata No.2624 (New) area 1 Bigha & Khata No. 2623 (New) 5 Kattha by appointing the Circle Officer, Hayaghat as receiver of the land in question.

3. Learned counsel appearing on behalf of the petitioners submitted that the petitioners have claimed that the land relating to Khata No.1080, Plot No.1439, Area 4 Bigha 5 Katha 4 Dhur, Khata No.2624 (New) Area 1 Bigha and Khata No.2623 (New) 5 Katha situated in Hayaghat Block, remained in their peaceful possession for last hundred years. The opposite parties, to disturb the petitioners from peaceful possession, filed an application under Section 144 Cr.P.C. before the Sub- Divisional Officer (SDO), Sadar, Darbhanga, claiming their title over the said piece of land. Notices were issued. The petitioners appeared through their counsel but without giving any opportunity, the SDO proceeded to pass impugned order and converted the proceeding under to Sections 145 and the land in question was attached under Section 146 (1) of the Cr.P.C. and the Circle Officer, Hayaghat was appointed as a receiver on the same day i.e. on 07.05.2024.

4. He further submitted that without holding any physical inquiry, the SDO proceeded to pass the order under Sections 146 (1) of Cr.P.C. without there being any material on record to show that whether there was any breach of peace, over the said piece of land and also he mechanically appointed the receiver. As such, the petitioners were restrained from cultivating any crop over the said land for their livelihood. Learned counsel submitted that in similar facts and circumstances, the Apex Court, dealing with the jurisdiction of the SDO, in case of Ashok Kumar v. State of Uttarakhand reported in (2013) 3 SCC 366 has held that the necessary ingredients for passing an order under Section 145 (1) of the Cr.P.C. would not automatically attract for the attachment of the property. The Apex Court further held that under Section 146 of the Cr.P.C., a Magistrate has to satisfy himself, as to whether, emergency exits before he passes an order of attachment. A case of emergency, as contemplated under of the Code, has to be distinguished from a mere case of apprehension of a breach of the peace. On these backgrounds, learned counsel referring to the impugned order, submitted that from bare perusal of the order impugned, it is evident that the SDO has not given any reason or any ground for immediately acting in accordance with the (1) of the Cr.P.C. and ignoring the mandatory provision as required under (1) of the Cr.P.C., he appointed the receiver for the reason best known to him by putting loss to the petitioners and depriving them from their rightful possession over the aforesaid piece of land, belonging to their family. He further submitted that the impugned order don’t discuss any evidence which has been produced by the opposite parties in support of their claim, whereas, the petitioners have produced their long standing possession and have also produced the rent receipt, which was issued year after year, before the SDO, which has resul