The main legal point established in the judgment is that an order of attachment under Section 146(1) Cr.P.C. should only be passed in cases of emergency and not merely based on apprehension of breach of peace, and the importance of waiting for the version of the other party before passing such orders.

JUDGMENT :

AJIT KUMAR, J.

1. Heard Shri Rahul Sahai, learned counsel for the applicant, Shri S.K. Verma, learned Senior Advocate assisted by Shri Bipin Lal Srivastava, learned counsel for opposite party no. 2, learned Additional Government Advocate for the State and perused the records.

2. This application U/s 482 Cr.P.C. is directed against the order dated 06.02.2019, whereby, the Session Judge, Badaun has set aside the order of attachment dated 13.11.2018 passed in exercise of power under Section 146(1) Cr.P.C. in a proceeding instituted by present applicant under Section 145 Cr.P.C. while issuing notice under sub-section (1).

3. The argument raised on behalf of the applicant is that while the attachment order was passed it was of necessity in view of report submitted by police and therefore, there was no occasion for the court to enter into the controversy and more so when the revision petition itself was not maintainable against the order passed under Section 146(1) Cr.P.C.

4. Per contra the argument advanced by learned Additional Government Advocate is that there was no occasion for the learned Magistrate to have passed the order under Section 146(1) Cr.P.C. for attachment of the property which is jointly recorded in the name of rival parties, while issuing notices under Section 145(1) Cr.P.C. on the same day.

5. The law is well settled that no injunction can be granted to one tenure holder or owner of the property against co-tenure holder on the principle that possession of one is possession of all. It appears that this principle got escaped the judicial mind of the learned Magistrate while passing the order of attachment. At least initially while issuing notices, the Magistrate should have waited for the version of the other side. There should be eminent threat of breach of peace on the spot, to wit, an emergency. However, order of attachment in this case does not contain any such observation to at least form a prima facie opinion regarding existence of such an emergency. The Court may record that even in the civil suit bearing O.S. No. 330 of 2018 for permanent injunction initiated by the present applicant, civil court refused to grant any ex-parte injunction. Even otherwise question of possession is the basic issue to be adjudicated in a proceeding u/s 145 of Code of Criminal Procedure, 1973 and order of attachment at the very threshold of the proceedings may prejudice the claim of the party in possession. While making these observations, I am reminded of the judgment of the Apex Court in Ashok Kumar v. State of Uttarakhand & Others (2013) 3 SCC 366, in which vide paragraph nos. 10, 11 & 12 the Court held thus:

"10. The ingredients necessary for passing an order under Section 145 (1) of the Code would not automatically attract for the attachment of the property. Under Section 146, a Magistrate has to satisfy himself as to whether emergency exists before he passes an order of attachment. A case of emergency, as contemplated under Section 146 of the Code, has to be distinguished from a mere case of apprehension of breach of the peace. The Magistrate, before passing an order under Section 146, must explain the circumstances why he thinks it to be a case of emergency. In other words, to infer a situation of emergency, there must be a material on record before Magistrate when the submission of the parties filed, documents produced or evidence adduced.

11. We find from this case there is nothing to show that an emergency exists so as to invoke Section 146(1) and to attach the property in question. A case of emergency, as per Section 146 of the Code has to be distinguished from a mere case of apprehension of breach of peace. When the reports indicate that one of the parties is in possession, rightly or wrongly, the Magistrate cannot pass an order of attachment on the ground of emergency. The order acknowledges the fact that Ashok Kumar has started construction in the property in question, therefore, possession of property is with th