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1979 Supreme(All) 41
HIGH COURT OF ALLAHABAD
P.N.Bakshi
GOVIND PRASAD
Versus
BISSO MAL AND
Decided On : 12 January 1979
Cr. Revision No. 1426 of 1978
The duration of an emergency attachment under Section 146(1) Cr. P. C. is limited to the period till the inquiry under Section 145(4) is completed and the Magistrate has given his decision under Section 145(6) Cr. P. C.
Headnote:
CRIMINAL PROCEDURE CODE, 1973 - SECTION 145, 146 - ATTACHMENT OF PROPERTY - EMERGENCY ATTACHMENT - DURATION - INTERPRETATION - SECTION 146(1) - ORDER OF ATTACHMENT - THREE CONTINGENCIES - EMERGENCY ATTACHMENT - ATTACHMENT AFTER CONSIDERATION OF EVIDENCE - DISTINCTION - WITHDRAWAL OF ATTACHMENT - CONDITIONS.
Fact of the Case:
A preliminary order under Section 145(1) Cr. P. C. was passed by the Sub-Divisional Magistrate on the basis of a police report indicating apprehension of breach of peace. The property was attached under Section 146(1) Cr. P. C. considering it a case of emergency. Bisso Mai, one of the parties, filed an application for release of the property from attachment, claiming ownership and possession of the disputed plot and denying any apprehension of breach of peace. The Magistrate, after considering the police report and written statements of both parties, rejected the application and ordered the continuation of the proceeding under Section 145 Cr. P. C. Subsequently, the Magistrate passed an order on 19th April 1976 directing the parties to get their claim for possession decided by a competent court. Bisso Mai again filed an application on 6th October 1977 alleging no apprehension of breach of peace and requesting to drop the proceedings. The Magistrate, on 31st March 1978, rejected the application and directed the property to remain under attachment till the rights of the parties were decided by the Civil Court. Bisso Mai filed a revision before the Sessions Judge, who allowed the revision, set aside the Magistrate's order, and directed the dropping of the proceeding under Section 145 Cr. P. C.
Finding of the Court:
The Allahabad High Court held that the impugned order of the Sessions Judge was illegal and must be set aside. The order of the Magistrate dated 19th April 1976 insofar as it relates to the attachment of the property till the rights of the parties are decided by the Court was also modified to the extent that the attachment shall continue during the pendency of the inquiry under Section 145(4) Cr. P. C. The Magistrate was directed to proceed with the completion of the inquiry in accordance with the law.
Issues: 1. Whether the order of the Sessions Judge directing the dropping of the proceeding under Section 145 Cr. P. C. was legal? 2. Whether the order of the Magistrate continuing the attachment of the property was legal? 3. Whether the order of the Magistrate dated 19th April 1976 insofar as it relates to the attachment of the property till the rights of the parties are decided by the Court was legal?
Ratio Decidendi: 1. The order of the Sessions Judge directing the dropping of the proceeding under Section 145 Cr. P. C. was illegal because the Magistrate had rightly held that the apprehension of breach of peace continued to exist. 2. The order of the Magistrate continuing the attachment of the property was illegal because it was an emergency attachment and should have been allowed to continue only till the inquiry under Section 145(4) was completed and the Magistrate had given his decision under Section 145(6) Cr. P. C. 3. The order of the Magistrate dated 19th April 1976 insofar as it relates to the attachment of the property till the rights of the parties are decided by the Court was illegal because the attachment could only continue during the pendency of the inquiry under Section 145(4) Cr. P. C.
Final Decision: The Allahabad High Court allowed the revision application, quashed the impugned order of the Sessions Judge, and modified the order of the Magistrate dated 19th April 1976 to the extent that the attachment shall continue during the pendency of the inquiry under Section 145(4) Cr. P. C. The Magistrate was directed to proceed with the completion of the inquiry in accordance with the law.
On the basis of the report of the police of police station Achnera, dated 20th October, 1974 the Sub-Divisional Magistrate passed a preliminary order under Section 145 (1) Cr. P. C. on 21st October, 74. Considering the case one of emergency, he also directed attachment of the property under section 146 (1) Cr. P. C. The parties were summoned to file their written statements on 22nd October, 74 the property was attached. Thereafter on 29th October, 74 Bisso Mai filed an application alleging that the report of the police contained incorrect allegations and there was absolutely no apprehension of breach of peace with respect to the disputed plot. It was prayed that the property be released from attachment. The Magistrate called for police report on this application. On 19th Nov. 1974, Bisso Mai filed a written statement in which he asserted that he was the owner in possession of the disputed plot and that he had constructed a building thereon and that there was no apprehension of breach of peace. On 3rd Dec. 74 the police report was submitted to the effect that the apprehension of breach of peace continued to exist before. On the same day viz 3rd December, 74 Govind Prasad filed his written statement in which he asserted his ownership and possession of the plot in dispute and asserted that there existed an immediate danger of peace since Bisso Mai was interfering with his possession. The learned Magistrate again passed an order on 3rd December, 74 agreeing with the report of the police as to the existence of apprehension of breach of peace. He rejected the application of Bisso Mai for dropping the proceeding under section 145, Cr. P. C. and ordered that the proceeding shall continue. The court proceeded to record the statement of Bisso Mai in respect of his claim for possession over the land in dispute. The statement of Bisso Mai was unfinished and was to continue. Subsequently on 19th April, 76 the Magistrate being of the opinion that in view of the attachment of the land in dispute, he should not proceed further with the inquiry, he passed an order on the same date directing the parties to get their claim for possession decided by a competent court. It appears that in pursuance of this order, a civil suit for title and possession as filed by Bisso Mai and the matter is still sub judice. It appears from the record that on 6th October, 77 Bisso Mai again filed an application alleging that there was no apprehension of breach of peace and the proceedings be dropped. On 27th January, 178, the police submitted a report that now there did not exist any apprehension of breach of the peace with respect to the land in dispute. In opposition Govind Prasad filed an application and affidavit on 31. 3. 78 that the report of the police was incorrect and that the apprehension of breach of peace continued to exist. The Magistrate did not accept the police report and considering all the circumstances passed an order on 31st March, 78 rejecting the application of Bisso Mai for dropping the proceeding and directed that the property shall continue to remain under attachment till the rights of the parties had been decided by the Civil Court. Aggrieved thereby a revision was filed by Bisso Mai before the Sessions Judge, Agra. This revision has been allowed on 3rd August, 78. The order of the Magistrate dated 31st March, 78 refusing to drop the proceeding and withdraw the attachment, have been set aside. The Sessions Judge has directed that the proceeding under Section 145 Cr. P. C. be dropped as redundant. Hence this revision by Govind Prasad. I have heard the learned counsel for the parties at considerable length and have also carefully scrutinized the record. Counsel for the applicant has contended that the impugned order passed by the Sessions Judge is illegal. The order passed by the Magistrate on 19th April, 1976 by which he directed the parties to get their rights decided by the civil court had become final, that since the appr
