The main legal point established is that the provisions of emergency attachment under Section 146, Cr. P. C. may only be invoked when there is an imminent breach of peace, and the attachment must be justified based on the existing materials before the Magistrate.

PALOK BASU, J.

( 1 ) HEARD Sri G. N. Chandra, learned counsel for the applicants and Shri Rajesh Tandon, learned counsel for the opposite parties.

( 2 ) THE short question involved in this petition under S. 482, Cr. P. C. is as to whether the attachment order dated 2-8-88 passed by S. D. M. , Duddhi, Mirzapur (now district, Sonbhadra) should be given effect to or not.

( 3 ) IT is undisputed that the concerning immovable property, a preliminary order was passed by the S. D. M. concerned on 11-3-1988. There was some police report dated 23-7-88 which was acted upon by the Magistrate in the sense that he proceeded to pass attachment order impugned in this application.

( 4 ) THE further undisputed facts are that when the attention of the Magistrate was drawn to the fact that right from March to August, he had not passed an order under Section 146, Cr. P. C. and had thought proper to hear the applicants Jawahar Lal and Rama Shanker in the main proceeding under Section 145 Cr. P. C. , there was no need or justification to pass the attachment order. On this, the Magistrate passed an order on 11-8-88 keeping his attachment order in abeyance. However, the revision filed by Jawahar Lal and Rama Sdhanker against the orders passed in those proceedings was dismissed by the Sessions Judge. This order was interpreted by the Magistrate that there was enough justification for him to go ahead with the attachment order dated 2-8-88. Consequently, he proceeded to pass an order on 13-3-1989, a copy of which has been filed as Annexure-10 to the counter-affidavit through which, he has asked the police to implement the attachment order dated 2-8-88. Hence, this petition was filed by Jawahar Lal and Rama Shanker with the prayer that in the instant case, attachment of the disputed property on the materials existing, may not be made and that order should be quashed.

( 5 ) THE provisions of emergency attachment as envisaged under Section 146, Cr. P. C. may be invoked only in cases where the Magistrate records satisfaction that but for the attachment of the disputed property, the breach of peace is eminent. On the facts of the present case, it sounds too high to expect that in a proceeding under Section 145, Cr. P. C. which commenced on 11-3-88, the attachment should be directed now i. e. exactly about 2 years of the initiation of those proceedings. The materials existing before the Magistrate do not justify today, the directing of the attachment to proceed further. On the facts, existing materials may not be interpreted as now a case of emergency. Consequently, the impugned direction of the Magistrate as contained in his order dated 13-3-89 directing the attachment of the property has to be set aside. But this does not mean that the proceedings under Section 145, Cr. P. C. should not come to its logical end in accordance with law.

( 6 ) CONSEQUENTLY, this application is allowed. The attachment order dated 2-8-88 as re-enforced by the Magistrates order dated 13-3-89 are quashed with the further direction that he will proceed to decide the impugned petition under Section 145, Cr. P. c. as expeditiously as possible in accordance with law. It will be open to the Magistrate concerned to initiate proceedings under Section 146 Cr. P. c. should such material be brought on the record justifying such an order of attachment in case of emergency. Petition allowed.

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