An order of attachment under Section 146(1) Cr.PC requires proof of likelihood of breach of peace and determination of possession, which was not established in this case.

JUDGMENT :

B. BHATTACHARJEE, J.

1. By this Criminal Revision, the petitioner has challenged the impugned order dated 20.04.2022 passed in Misc. Case No. 01/2021 u/s 145 Cr.PC by which the disputed land was ordered to be attached u/s 146 (1) Cr.PC.

2. Heard Mr. A.S. Siddiqui, learned Sr. counsel appearing for the petitioner and also Mr. P.R. Paske, learned counsel for the sole respondent.

3. The facts as can be revealed from the materials on record is that the respondent herein filed an FIR dated 05.02.2021 before the Officer In- charge, Ampati Police Station alleging that the petitioner was attempting to forcibly occupy her land situated at Ichakuri, Ampati, South West Garo Hills District. Pursuant to the lodging of the FIR, the police conducted an investigation in the matter and thereafter, forwarded a report to the learned Executive Magistrate, South West Garo Hills District for initiation of proceeding under Section 145 Cr.PC involving both the petitioner and the respondent herein. The learned Executive Magistrate, consequent upon receiving the police report drew up a proceeding under Section 145 Cr.PC in Misc. Case No. 01/2021. It appears that pursuant to the initiation of the proceeding and filing of the written statement by the respective parties, the learned Executive Magistrate vide impugned order dated 20.04.2022 passed an order directing the attachment of the land in question under Section 146(1) Cr.PC and prohibited the parties from engaging in any economic activities on the land during the period of attachment or until such time when process and demarcation is completed by the concerned officials of the Garo Hills Autonomous District Council, (GHADC).

4. Assailing the impugned order dated 20.04.2022, the learned Sr. counsel for the petitioner submits that the learned Executive Magistrate had not followed the provisions of law as laid down under Section 145 and Section 146(1) Cr.PC and passed the impugned order without even recording that there exists a likelihood of breach of peace between the parties over the possession of the land in question. He submits that in absence of compliance of the mandatory provisions of law, the impugned order cannot be sustained and liable to be set aside and quashed.

5. Mr. P.R. Paske, learned counsel for the respondent submits that the proceeding u/s 145 Cr.PC was initiated by the Executive Magistrate on the basis of the report of apprehension of breach of peace between the parties herein concerning landed property filed by the police. He further submits that the order of attachment was necessitated because of the existing situation and passing of the earlier order dated 21.02.2020 concerning boundary dispute between the parties by the revenue authority of the GHADC. He submits that taking into consideration the factual background, the impugned order does not suffer from any illegality and this instant criminal revision petition deserves to be dismissed.

6. Upon consideration of the submission made by the rival parties and on perusal of the materials on record, it is found that the learned Executive Magistrate while passing the impugned order did not record anything with regard to the existence of any situation concerning breach of peace between the parties over possession of land in question. Further, the learned Executive Magistrate before passing the order of attachment under Section 146(1) Cr.PC has also not recorded any finding basing on existing factual situation to ascertain as to which party was in possession of the disputed land at the relevant point of time. The perusal of the impugned order shows that the learned Executive Magistrate has given much weightage to the production of documentary evidence in relation to the claim of ownership of the parties instead of determining the question of possession over the disputed land. The operative part of the impugned order reads as follows: -

“…….. Since both the parties have been unable to prove the extent of boundaries of their lands fr