The mandatory requirements for drawing up a proceeding under Section 145 as a pre-requisite for invoking Section 146, and the necessity for the Magistrate to satisfy specific circumstances before passing an attachment order under Section 146.

B.D. Agarwal, J.

1. This criminal petition under Section 482 of the Code of Criminal Procedure has been filed against the order dated 5.9.2006 passed by Shri A.C. Marak, learned Magistrate First Class, West Garo Hills, Tura in Misc. Case No. 36/2006. By the impugned order, the learned Magistrate has attached the disputed land purportedly in exercise of his power conferred under Section 146(1) of the Code of Criminal Procedure (briefly 'Cr.P.C.'). Being aggrieved with the order of attachment, the second party in the trial court has preferred this revision application.

2. I have heard Shri A.S. Siddique, learned Counsel for the petitioners and Shri A.H. Hazarika, learned Counsel for the respondents. I have also perused the impugned order.

3. Brief facts giving rise to the filing of the criminal proceeding as well as this revision application are that the petitioners are claiming the tile and possession over the disputed land by way of inheritance, whereas the respondents are claiming tile and interest on the basis of the purchase of the disputed land from the predecessor-in-interest of the disputed land. Once earlier also, this matter had come to this Court vide Civil Rule No. 30(SH)/98. While disposing of the said petition on 5.9.1999, this Court hoped that the dispute will be amicably settled in between the parties. However, no extra judicial settlement could be reached and at the same time both the parties made all efforts to take possession of the disputed land.

4. In the midst of the aforesaid dispute, the respondents filed an application before the Addl. District Magistrate Judicial, Tura on 28.08.2006 alleging that about a week ago the petitioners/second party members had threatened and dispossessed them. This application was subsequently transferred to the Court of Magistrate, First Class whereupon the impugned order was passed.

5. Shri A.S. Siddique, learned Counsel for the petitioners has assailed the criminal proceeding and more particularly the impugned order on the ground that cognizance of the complaint has been taken without adhering to the provisions of law. According to the learned Counsel, before bringing the disputed land under attachment, a Magistrate is bound to draw-up a proceeding under Section 145Cr.PC. However, in the case in hand, the impugned order was passed without drawing up a formal proceeding. The learned Counsel also submitted that even for passing an attachment order, the Magistrate is required to assign his reasons, as contemplated under Section 146 Cr.P.C.

6. On the other hand, Shri Hazarika, learned Counsel for the respondents submitted that the impugned order has been passed on the basis of the statements made in the complaint. According to the learned Counsel, the subjective satisfaction of the Magistrate cannot be questioned in a petition under Section 482 Cr.PC.

7. For better appreciation of the rival contentions it is necessary to reproduce below the relevant parts of the impugned order, which are as below:

5.9.2006. C.R. received on transfer from learned Additional District Magistrate.

Perused the C.R. and heard the submission of the Counsel for the 1st party who submits that there is imminent danger to the peace over the disputed land. And it is highly necessary to prevent the breach of peace by attaching the disputed land. Examined the records and satisfied myself that there is every likelihood of breach of peace and tranquility over the disputed land I hereby attached the disputed land.

8. It is hardly necessary to say that holding of proceedings under Section 145 is a condition precedent for passing any interlocutory order. That, there can be no departure from this mandatory requirement would be clear from the introductory parts of Sections 145 and 146 Cr.P.C, which are reproduced below:

Section 145(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land