The Court emphasized that vague assertions of breach of peace are insufficient for an attachment order under Sections 145 and 146 of the Cr.P.C.

ORDER :

Farjand Ali, J.

The instant misc. petition has been preferred against the order dated 25.07.2023 passed by learned Additional Sessions Judge, Nokha, District Bikaner in Criminal Revision No.49669/2014 whereby the learned Judge has set aside the order dated 08.08.2014 passed by learned Sub-Divisional Officer, Nokha in Criminal Complaint No.3/2008 whereby the learned Executive Magistrate has directed to attach the property and appointed the Tehsildar as receiver of the property.

2. Heard learned counsel for the petitioner and learned Public Prosecutor as well as gone through the order passed by learned Executive Magistrate as well as passed by learned Court of Revision.

3. The ambit and scope of Sections 145 and 146 of the Cr.P.C. is limited to the question of possession, when it comes to the knowledge of an Executive Magistrate that there has been a strong apprehension of breach of peace and tranquility with regard to possession of an immovable property or it is not ascertainable as to which party is in possession of the property or it is shown that prior to two months of the dispute, the possession has been taken over forcibly by one party from the other; then in such circumstances, just to thwart the possibility of breach of peace and to avoid splattering of blood on the spot, as an interim measure, an Executive Magistrate may pass an order regarding attachment of property and appointment of a receiver. There is a fine distinction between question of possession and right to possession. The question of possession is to be determined by a Civil or by a Revenue Court. However, when it comes to the question of possession as to which party is in possession, then in emergent circumstances, the provision contained under Sections 145 and 146 of the Cr.P.C. can be invoked.

4. Here in this case, simply on a bald and vague assertion regarding apprehension of breach of peace, the learned Magistrate has passed the order which was not sustainable in the law. The learned Court of Revision has very prudently and wisely evaluated the niceties of the matter and examined the legality, correctness and propriety of the order passed by the learned Executive Magistrate.

5. This Court concurs with the observation made by learned Court of Revision. There is no substance in the petition. The order passed by the learned Court of Revision is upheld. The order passed by the learned executive Magistrate is not sustainable.

6. In this view of the matter, the instant misc. petition as well as the stay petition stand disposed of having no force.